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COVID-19: News and Updates |
| Special #14 - April 8, 2020 |
| New Update Gov. Kemp extends public health state of emergency and shelter-in-place order
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| Articles Today
- LEGAL BULLETIN - OSHA issues temporary enforcement guidance on respiratory protection
Constangy, Brooks, Smith & Prophete, LLP By Bill Principe and David Smith / Atlanta Office
April 7, 2020
- LEGAL BULLETIN - Paid Sick Leave Under the FFCRA: What Does It Mean To Be Unable To Work Due To A Quarantine or Isolation Order?
Constangy, Brooks, Smith & Prophete, LLP By Jill Stricklin / Winston-Salem Office April 7, 2020
- ¶46,844 Employers protecting resources and processes in response to Coronavirus workplace realities — SURVEY RESULTS, (Apr. 8, 2020)
- ¶46,841 Unemployment Insurance Program Letter outlines CARES Act benefits — AGENCY REGULATION, (Apr. 7, 2020)
- ¶46,846 WHD webinar on FFCRA highlights key points; workplace posters available — AGENCY GUIDANCE, (Apr. 8, 2020)
- ¶20,130D UI letters discuss additional payments and other broad relief available under CARES Act — MULTISTATE — Unemployment Insurance, (Apr. 8, 2020)- Georgia Department of Public Health COVID-19 Daily Status Report
April 8, 2020
- Live Webinar Apr 15th > Leadership During This Crisis: Proactive Leadership for Employees in a Reactive Mindset Register>> April 15, 2020 - 1pm - 2pm EDT
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LEGAL BULLETIN
Constangy, Brooks, Smith & Prophete, LLP By Bill Principe and David Smith / Atlanta Office
April 7, 2020
OSHA issues temporary enforcement guidance on respiratory protection
On March 14, the Occupational Safety and Health Administration issued initial Guidance explaining that due to the shortage of N95 filtering facepiece respirators, the Agency was not requiring health care employers to conduct annual fit tests as required under the Respiratory Protection Standard. This guidance has now been expanded upon by two additional Guidance Documents.
On April 3, OSHA issued an interim guidance memorandum permitting the “extended use and re-use of respirators, as well as the use of respirators that are beyond their manufacturer’s recommended shelf life. . . .” This guidance applies to all industries, not just to health care. The new interim enforcement memo does not address the use of surgical masks or other paper or cloth masks other than to say that re-used or out-of-date N95 masks are more protective than surgical masks.
OSHA emphasizes that despite the widespread shortage of N95 respirators, employers must continue to comply with all of the other requirements of the Respiratory Protection Standard, apart from the two narrow exceptions noted above. In fact, OSHA advises that because of the limited supplies of N95 respirators, employers should “reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 respirators,” such as “to temporarily suspend certain non-essential operations.”
Extended use or re-use of N95s
If extended use or re-use of an N95 is necessary, OSHA instructs that a worker can continue to use the N95 “as long as the respirator maintains its structural and functional integrity and the filter material is not physically damaged, soiled, or contaminated (e.g., with blood, oil, paint).” Without distinguishing between voluntary and required use of the N95s, OSHA states that employers “must address” in a written Respiratory Protection Plan “the circumstances under which a disposable respirator will be considered contaminated and not available for extended use or reuse.”
OSHA further advises that employers should also ensure that users of N95 masks perform a user seal check each time they don a respirator, and that employers should train employees to understand when “the structural and functional integrity of any part of the respirator is compromised” and needs to be discarded.
Use of expired N95s
As noted above, employers are being allowed to use expired N95s if the employer has made a good faith effort to acquire in-date respirators and cannot acquire any. Users of the out-of-date N95s are instructed not to co-mingle them with N95s that are within their shelf life and to visually inspect the respirators to determine whether their structural and functional integrity has been compromised.
Use of other countries’ respirators
A second Guidance Document was also issued on April 3, which allows the use of filtering facepiece respirators, air-purifying respirators, and compatible filters certified under Standards from other countries when N95s approved by the National Institute for Occupational Safety and Health are not available:
• Australia: AS/NZS 1716:2012
• Brazil: ABNT/NBR 13694:1996; ABNT/NBR 13697:1996; and ABNT/NBR 13698:2011
• People's Republic of China: GB 2626-2006; and GB 2626-2019
• European Union: EN 140-1999; EN 143-2000; and EN 149-2001
• Japan: JMHLW-2000
• Republic of Korea: KMOEL-2014-46; and KMOEL-2017-64
• Mexico: NOM-116-2009
Health care employers only
Expired N95s must not be used when health care professionals perform surgical procedures on patients infected with, or potentially infected with, the coronavirus, or are present for procedures expected to generate aerosols, or “where respiratory secretions are likely to be poorly controlled” (e.g., cardiopulmonary resuscitation, intubation, extubation, bronchoscopy, nebulizer therapy, sputum induction). For other types of care provided to known or suspected COVID-19 patients, the OSHA Guidance allows expired N95s to be used.
The OSHA Guidance stops short, however, of the current position of the Centers for Disease Control and Prevention, which allows the use of facemasks (which protect the wearer from splashes and sprays) as “an acceptable alternative” for caring for known or suspected COVID-19 patients “when the supply chain of respirators cannot meet the demand.” According to CDC’s Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, updated on March 10, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to health care providers. Although California OSHA has recently announced its policy of allowing facemasks to be used instead of N95s for certain health care tasks when N95 supplies are limited and certain conditions are met, federal OSHA has yet to take that step.
In addition, the Food and Drug Administration will be providing a list of authorized emergency-use respirators for health care professionals that will include some NIOSH-approved respirators that have not previously been approved by the FDA.
Lessons learned
This new guidance has some value for health care employers, but is of very limited use for all other employers who presently cannot get N95s and are being actively discouraged by the federal government from competing against hospitals for these respirators. We will monitor OSHA’s subsequent guidance and let you know when the Agency begins to address the everyday compliance issues confronting non-healthcare employers during the pandemic.
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| | | LEGAL BULLETIN
Constangy, Brooks, Smith & Prophete, LLP
By Jill Stricklin / Winston-Salem Office
April 7, 2020
Paid Sick Leave Under the FFCRA: What Does It Mean To Be Unable To Work Due To A Quarantine or Isolation Order?
The Families First Coronavirus Response Act requires employers with fewer than 500 employees to provide paid sick leave and expanded family and medical leave to employees who are unable to work due to COVID-19. The statute lists six qualifying reasons for paid sick leave, including when an employee is unable to work or telework because the employee is “subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” The U.S. Department of Labor’s recent regulations provide further insight into what it means to be unable to work due to a quarantine or isolation order for purposes of paid sick leave under the FFCRA.
The new regulations define “subject to a quarantine or isolation order” broadly to include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” This definition also includes circumstances in which a “government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing these categories of Employees to be unable to work even though their Employers have work for them.”
Notwithstanding this expansive definition, not all employees who are subject to government orders restricting travel or mobility are entitled to paid sick leave under the FFCRA. Instead, the regulations specify that only a relatively narrow group of employees subject to such orders will be entitled to paid leave—namely, only employees who would be able to work or telework if they were not subject to such an order. Put another way, the regulations make clear that an employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of an order or other circumstances.
The new regulations are consistent with the Department of Labor’s FAQs. In that guidance, the department stated that an employee is “unable to work or telework” only if the employer has work available for the employee and one of the six qualifying reasons prevents the employee from being able to perform that work, either at the normal worksite or by teleworking. If an employer closes a worksite, either for lack of business or because it is required to close the site pursuant to a government order, then the employee is not entitled to paid sick leave, though he or she might be eligible for unemployment insurance benefits.
To explain this distinction, the department uses a hypothetical coffee shop as an example of how the “unable to work” criteria might play out in various scenarios involving quarantine or isolation orders. If, for example, a coffee shop closed temporarily or indefinitely due to a coronavirus-related downturn in business, its employees would no longer have work available. Accordingly, a cashier who worked at the coffee shop would not be eligible for paid sick leave, even if she was also subject to a stay-at-home order. That is because the cashier’s inability to work does not result from her own need to comply with the stay-at-home order, but rather from the closure of her workplace. According to the Department of Labor, this analysis holds true even if the coffee shop shut down as a direct result of the stay-at-home order. If the coffee shop closed because its customers must stay at home, the cashier would be unable to work because the customers were subject to the stay-at-home order, not because the cashier was subject to the order. Similarly, if the coffee shop closed due to a government order requiring it to close, the cashier would be unable to work because the coffee shop was subject to the order, not because the cashier was subject to the order. In either case, the cashier would not be entitled to paid sick leave.
In determining whether an employee may take paid sick leave, the question is whether the employee would be able to work or telework “but for” the employee being required to comply with a quarantine or isolation order. This inquiry requires an individualized assessment of the reasons an employee is unable to work and whether the employer has work available for the employee to perform, either at the regular worksite or by teleworking. Thus, despite the broad definition of “quarantine or isolation orders” set forth in the regulation, only a relatively small subset of employees subject to government orders are likely to be entitled to paid sick leave under the FFCRA.
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¶46,844 Employers protecting resources and processes in response to Coronavirus workplace realities — SURVEY RESULTS, (Apr. 8, 2020)
MRA—The Management Association has released the results of its Hot Topic Survey No. 3 on Coronavirus Workplace Realties. This survey is part of a series on the impact of COVID-19 providing data and trends to help organizations make strategic business decisions during this time of crisis. The results from a survey conducted the week of March 30 reveal a shift downward in the “extremely concerned” category regarding the impact to human resources and business continuity. Will leveling continue as employers and their employees begin to settle into a “new normal,” or will it escalate as tough decisions are made regarding human resources and business continuity?
Survey results do lean in favor of the manufacturing industry. Manufacturers play a leading presence in the Upper Midwest and MRA membership, so survey responses may weigh heavier towards manufacturing. In addition, manufacturers are much more likely to be classified as “essential businesses” under shelter at home restrictions. As a result, may be operating under normal employment and operating circumstances.
Concerns remain high overall, however, results from March 20-24 to March 27-31 shows that some leveling off has begun. The chart below highlights the week-to-week changes under the “Extremely Concerned” category regarding the impact to business continuity and HR.
______________________________________________________________
Impact on Business Continuity Impact on Human Resources ______________________________________________________________
March 27-31 45% 41% March 20-24 56% 45%
March 11-16 27% 18%
______________________________________________________________
Staffing and Compensation Changes
Organizations experiencing a decline in business due to Coronavirus have instituted furloughs and layoffs (20%), shortened work weeks, and/or reduced hours (16%). Other actions include delaying 2020 employee pay adjustments (promotions, merit increases, market adjustments, bonuses) (12%) and voluntary leaves without pay (10%).
Leadership
Keeping employees informed and engaged during this time of crisis and uncertainty remain of key importance. In addition, the top five virtual training topics selected to support leaders include:
1. 51% Managing Remote Teams
2. 48% Crisis Leadership
3. 41% Stress Management
4. 37% Effective Remote Meetings
5. 28% Sensitive Employee Conversations
Conclusion
To date, many employers appear to be protecting resources and processes in response to Coronavirus workplace realities. Changes continue as effects on business escalate and cost-containment strategies become necessary.
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¶46,841 Unemployment Insurance Program Letter outlines CARES Act benefits — AGENCY REGULATION, (Apr. 7, 2020)
On April 2, the Department of Labor’s Employment and Training Administration released Unemployment Insurance Program Letter 14-20 (UIPL), outlining relevant provisions of the Coronavirus Aid, Relief and Economic Security (CARES) Act related to the administration of and eligibility criteria for state unemployment insurance (UI) programs, including Pandemic Unemployment Assistance (PUA) for those not typically eligible for UI, such as gig workers, and expanded UI benefits.
The new guidance is the first of several upcoming UIPLs to states on the unemployment insurance provisions of the CARES Act, according to the DOL. The UIPL outlines several new programs under the recent CARES Act:
Pandemic Unemployment Assistance. PUA provides benefits for eligible individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for UI benefits under state or federal law. To be eligible, among other requirements, individuals must demonstrate that they are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work because of COVID-19 related reasons.
Federal Pandemic Unemployment Compensation (FPUC). Under the FPUC program, eligible individuals who are collecting certain UI benefits, including regular unemployment compensation, will receive an additional $600 in federal benefits per week for weeks of unemployment ending on or before July 31, 2020.
Pandemic Emergency Unemployment Compensation (PEUC). The PEUC program allows those who have exhausted benefits under regular unemployment compensation or other programs to receive up to 13 weeks of additional benefits. States must offer flexibility in meeting PEUC eligibility requirements related to "actively seeking work" if an applicant’s ability to do so is impacted by COVID-19.
Summary table. This UIPL includes a summary of all the UI-related provisions in Title II, Subtitle A of the CARES Act, and helps states implement the temporary emergency state staffing flexibility provision. A handy summary table of these provisions is included with the UIPL in Attachment 1, "Summary of Programs for the Relief for Workers Affected by Coronavirus Act."
Coordination of programs. The Program Letter notes that an individual may establish eligibility for multiple benefit programs, including multiple programs authorized in the CARES Act, contingent on the individual meeting all eligibility criteria for the respective program(s), and the state having entered into an agreement with the Secretary of Labor to administer such program(s).
"As workers across the country make sacrifices to combat the coronavirus, the U.S. Department of Labor is focused on supporting them and their families during a time of economic hardship," said Secretary of Labor Eugene Scalia. "The Department is offering guidance and support so that States can provide benefits quickly while protecting the integrity of the unemployment insurance system."
Further information. Further information on UIPLs and previous guidance is available here, please visit: wdr.doleta.gov/directives/. DOL resources on COVID-19 are posted here.
By WK Editorial Staff
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¶46,846 WHD webinar on FFCRA highlights key points; workplace posters available — AGENCY GUIDANCE, (Apr. 8, 2020)
As the Department of Labor’s Wage and Hour Division continues a steady release of guidance related to the protections and relief available under the Families First Coronavirus Response Act (FFCRA), which went into effect April 1, 2020, the DOL has made notable additions to the frequently asked questions that have already been updated a few times, including a webinar and workplace posters.
Webinar. The WHD has made the webinar available, which explains which employers are covered by the FFCRA, which workers are eligible, and what benefits and protections the law provides. The WHD noted that the presentation is intended as general information only and does not carry the force of legal opinion.
FFCRA-covered employers. The webinar slides outline key information for stakeholders, including that the FFCRA applies to private sector employers with fewer than 500 employees (including not for profit employers) and public agencies regardless of the number of employees they employ.
Counting employees. The webinar slides indicate how employees are counted:
- Employer does not count employees working outside the U.S., U.S. territories, or D.C.
- Full-time AND part-time employees are counted
- Employees who are working and on leave are counted
- Temporary employees who are jointly employed are counted
- Day laborers supplied by a temporary agency are counted
- Count is made when employee leave is initiated
Small business exemption. The webinar slides also point to the FFCRA’ s small business exemption, which it applies in these circumstances:
- Small businesses with fewer than 50 employees, AND
- Employee’s leave is to care for his or her child whose school or place of care is closed (or child care provider is unavailable), but only if
- The requirements of the FFCRA jeopardize business viability.
According to the webinar, there is no application process for the exemption to apply when the employer determines: - Leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- Employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR
- Insufficient employees able, willing, and qualified at the time and place needed to perform labor or services provided by the employee, and the labor or services are needed for business to operate at a minimal capacity.
Employers may also exclude from coverage employees who are either health care providers (which the DOL defines broadly) or emergency responders.
Layoffs. The webinar slides also indicate that FFCRA requirements do not apply prior to April 1, 2020. This means:
- If a business closes after April 1, but before an employee takes leave, FFCRA leave requirements do not apply except to the days from April 1 to the date employees are laid off.
- If a business is open but lays off part of its workforce, employees who are laid off or furloughed are not entitled to leave under the FFCRA.
Workplace posters. The WHD has made available several DOL workplace posters translated into additional languages, which fulfill notice requirements for employers obligated to inform employees about their rights under the FFCRA:
Further information on FFCRA guidance is available here.
"The Wage and Hour Division continues to prioritize providing the information that workers and employers need to be fully informed about their rights and protections under this critical new law," WHD Administrator Cheryl Stanton said in a release. "We continue to incorporate the tremendous amount of feedback we have received from stakeholders as we develop new guidance. We want to ensure that we’re providing the information the American workforce needs quickly, clearly, and in the most accessible format possible."
Source: By Pamela Wolf, J.D.
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¶20,130D UI letters discuss additional payments and other broad relief available under CARES Act — MULTISTATE — Unemployment Insurance, Over the April 4-5 weekend, the Department of Labor has separately released a pair of unemployment insurance guidance letters that flesh out more of the relief available under Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that was signed into law on March 27, 2020.
Unemployment Insurance Guidance Letter 15-20 (UIPL) provides guidance on how states will administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits under the Federal Pandemic Unemployment Compensation (FPUC), while UIPL 16-20 provides guidance to states for implementation of the Pandemic Unemployment Assistance (PUA) program.
Additional weekly payment. UIPL 15-20 outlines relief in Section 2104 of the CARES Act, under which states may provide an additional $600 per week benefit to individuals who are collecting regular Unemployment Compensation (including Unemployment Compensation for Federal Employees and Unemployment Compensation for Ex-Servicemembers) as well as the following unemployment compensation programs:
- Pandemic Emergency Unemployment Compensation;
- Pandemic Unemployment Assistance;
- Extended Benefits;
- ShortTime Compensation;
- Trade Readjustment Allowances;
- Disaster Unemployment Assistance; and
- Payments under the Self-Employment Assistance program.
Timelines. FPUC benefit payments are fully federally funded. For those who are eligible, the benefit payments under the FPUC may begin as soon as the week after the execution of a signed agreement between the DOL and states. The timeline for these payments will vary by state, according to the DOL. As states begin providing the payment, eligible individuals will receive retroactive payments back to their date of eligibility or the signing of the state agreement, whichever came later. All states have executed agreements with the department as of March 28, 2020, the DOL said. The CARES Act specifies that FPUC benefit payments will end after payments for the last week of unemployment before July 31, 2020.
Program integrity. UIPL 15-20 also includes guidance to states about protecting unemployment insurance program integrity, as the provisions in the CARES Act operate in conjunction with the fundamental eligibility requirements of the Federal-State UI program. The DOL is actively working with states receiving funding under the CARES Act to provide unemployment insurance benefits only to those who are entitled to such benefits.
Self-employed, independent contractors, gig workers. UIPL 16-20 provides guidance to states for implementation of the PUA program available under Section 2102 of the CARES Act. Under PUA, those who do not qualify for regular unemployment compensation and are unable to continue working as a result of COVID-19, such as self-employed workers, independent contractors, and gig workers, are eligible for PUA benefits.
The DOL explained that PUA provides up to 39 weeks of benefits to qualifying individuals who are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work due to COVID-19 related reasons, as defined in the CARES Act. Benefit payments under PUA are retroactive for weeks of unemployment, partial employment, or inability to work due to COVID-19 reasons starting on or after January 27, 2020. Benefits cannot be paid for weeks of unemployment ending after December 31, 2020.
Broad relief available. Eligibility for PUA includes those who are not eligible for regular unemployment compensation or extended benefits under state or federal law or pandemic emergency unemployment compensation, including those who have exhausted all rights to such benefits. Covered individuals also include self-employed individuals, those seeking part-time employment, and individuals lacking sufficient work history. Depending on state law, covered individuals may also include clergy and those working for religious organizations who are not covered by regular unemployment compensation.
Program integrity. UIPL 16-20 also includes guidance to states on protecting unemployment insurance program integrity. The DOL is actively working with states to provide benefits only to those who qualify for such benefits.
Further information on UIPLs and previous guidance is available at https://wdr.doleta.gov/directives/.
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| | Georgia Department of Public Health COVID-19 Daily Status Report
Today’s significant increase in cases is in part due to additional laboratories reporting to DPH, and also improvements in electronic reporting from other laboratories. Patient information is often incomplete and DPH works to complete the records, so data will change over time.
Georgia Department of Public Health COVID-19 Daily Status Report For: 04/02/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 04/02/2020 11:28:33.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases: No. Cases (%)
Total 9901 (100%)
Hospitalized 1993(20.13%)
Deaths 362 (3.66%)
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| | | Live Webinar Leadership During This Crisis:
Proactive Leadership for Employees in a Reactive Mindset |
| Please register for presented by Pete Tosh
Apr 15, 2020 1:00 PM - 2:00 PM EDT
You will have access to hand-outs to download during the Webinar Overview
Today there is a need for a different approach to Leadership. The outbreak & rapid spread of the coronavirus has created havoc not only to our health systems but to the way we work. Overnight many businesses have transitioned millions of employees to work from home. For a great many of those employees, working virtually is a new reality. Additionally, employees are seeing 24/7 pandemic news & their savings being shredded. As leaders & their teams make this sudden shift, it will be a challenge to ease employees’ anxiety, collaborate effectively & function productively
Because of the disruptions caused by the COVID-19 pandemic leaders are being forced to think, behave & lead in ways that are unfamiliar & uncomfortable. With employees unmoored & a work-life experience that’s ever-shifting, leaders need to exhibit a leadership style that is situationally appropriate. Employees & organizations have different requirements & expectations of their leaders – than they did 30 days ago. And organizations & employees – more than ever - need their leaders to ‘step up.’
Join Georgia Employers’ Association and Pete Tosh as he gives you ten proven crisis leadership approaches
Who Should Attend the Webinar? Any leader, manager, or supervisor who wants to improve his/her crisis leadership skills
Topics Covered: This webinar we will discuss the following ten, proven crisis leadership approaches: Developing & Communicating Your Business Preparedness & Response Plan - to Employees & Customers Recognizing the Increased Importance of ‘The Employee Experience’ Flattening the Employee Anxiety Curve Remaining Calm & Avoiding Knee-Jerk Reactions Establishing Clear Goals & Expectations for a Remote Workforce Leading from Home - by Not Acting Like You are Remote Preventing Employees from Feeling Detached Understanding Your Employees’ Unique, Remote Work Environments Taking Advantage of Virtual Meeting Options Rewarding the Employee Behavior You Want Repeated
Webinar Cost $60.00
After registering, you will receive a confirmation email containing information about joining the webinar. Brought to you by GoToWebinar® Webinars Made Easy® To learn more about Georgia Employers' Association Leadership and Management Training please visit our website. Go to training>>
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