COVID-19: News and Updates |
| Special #23 - April 22, 2020 |
|
Articles and Updates Today
- White House Guidelines To States For Reopening April 16, 2020
- Kemp announces plans to incrementally reopen Georgia | Here's what that includes
- ¶46,880 New EEOC Q&As provide insight into COVID-19 return-to-work issues — AGENCY GUIDANCE , Apr. 22, 2020
- ¶46,878 New safety tips tell manufacturers how to avoid worker exposure to coronavirus — FEDERAL NEWS, Apr. 21, 2020
- Legal Bulletin: The COVID-19 pandemic may spur union organizing and complicate union relations: Part One Constangy, Brooks, Smith & Prophete,LLP April 21, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
* Note: If you have any employment law/HR topics or issues you would like to see us cover in the News and Updates please email us at chris@georgiaemployers.org.
|
| | | | | READ: White House Guidelines To States For Reopening
April 16, 2020
|
| | Kemp announces plans to incrementally reopen Georgia|Here's what that includes
|
| | | ¶46,880 New EEOC Q&As provide insight into COVID-19 return-to-work issues — AGENCY GUIDANCE ,
Apr. 22, 2020 By Pamela Wolf, J.D.
On April 17, the EEOC once again updated its technical assistance guidance that addresses workplace questions arising under the continuing COVID-19 pandemic. The ongoing series of questions and answers explains how federal equal employment opportunity laws may come into play as employees and employers alike struggle to adapt workplace policies to address various issues that may arise during this public health crisis.
This particular update of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws expands on a previous publication that focused on the ADA and Rehabilitation Act. It adds Q&As focused on return-to-work situations, making reasonable accommodations, and harassment.
Earlier pandemic guidance. The EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version], which was updated as of March 19, 2020, address examples and information regarding COVID-19, including a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the EEOC updated its technical assistance to provide several new Q&As.
Reasonable accommodation requests. The updated Q&As provide further information about reasonable accommodations during the COVID-19 pandemic, including the following.
Is it a disability? During the pandemic, if an employee requests an accommodation for a medical condition (either at home or in the workplace), an employer may still request information to determine whether the condition is a disability. If not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA.
Why the accommodation is needed. An employer may still engage in the interactive process during the pandemic and request information from an employee about why an accommodation is needed. If not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include:
- How the disability creates a limitation;
- How the requested accommodation will effectively address the limitation;
- Whether another form of accommodation could effectively address the issue; and
- How a proposed accommodation will enable the employee to continue performing the "essential functions" of the position.
Temporary accommodations. When there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, the employer may provide a temporary accommodation. Given the pandemic, some employers may choose to forgo or shorten the "interactive process" and grant the request. When government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process and devise end dates for the accommodation, to suit changing circumstances based on public health directives.
Whatever the reason for shortening or adapting the interactive process, an employer may also want to put an end date on the accommodation—for example, a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate. Employers may also want to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting medical documentation.
Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts them at greater risk during the pandemic, or to employees who have disabilities exacerbated by the pandemic.
Employees may also request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.
Future accommodations. An employer may ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the interactive process to determine whether the impairment is a disability and the reasons that an accommodation is needed.
Undue hardship. The circumstances of the pandemic are relevant to whether a requested accommodation can be denied because it poses an undue hardship, An employer does not have to provide a particular reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
Significant difficulty. An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to:
- Conduct a needs assessment;
- Acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking;
- Provide employees with temporary assignments;
- Remove marginal functions; or
- Readily hire temporary workers for specialized positions.
If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
Significant expense. In terms of "significant expense," prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). However, the sudden loss of some or all of an employer's income stream because of the COVID-19 pandemic is a relevant consideration.
Also relevant is the amount of discretionary funds available at this time—when considering other expenses—and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted).
These considerations do not mean that an employer can reject any accommodation that costs money. Rather, an employer must weigh the cost of an accommodation against its current budget, while taking account of constraints created by the pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations available.
Pandemic-related harassment. The technical assistance additions also discuss pandemic-related harassment, noting that there are steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
Return to work. The new Q&As discuss the steps that employers can take that are consistent with the ADA to screen employees for COVID-19 when they enter the workplace as stay-at-home orders are modified or lifted in their localities. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Direct threat. Direct threat is to be determined based on the best available objective medical evidence, such as guidance from CDC or other public health authorities. Therefore, employers will be acting consistently with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that particular time. This may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Here, the EEOC noted that the CDC recently posted information on return by certain types of critical workers.
Further, employers should make sure they do not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
Modified PPE. When returning to work, an employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).
However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative—if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.
EEOC resources. In response to inquiries from the public, the EEOC has provided resources on its website related to the pandemic in an employment context. The agency will continue to monitor developments and provide assistance to the public as needed.
Source: By Pamela Wolf, J.D.
|
| | | | ¶46,878 New safety tips tell manufacturers how to avoid worker exposure to coronavirus — FEDERAL NEWS,
Apr. 21, 2020
FROM: 2020 Wolters Kluwer, GEA HR Answers now
OSHA has issued another alert listing safety tips that employers can follow to help protect workers from exposure to coronavirus—this time for manufacturing workers. The alert is available in both English and Spanish.
Earlier alerts. Previously, the federal health and safety agency issued a package delivery industry alert detailing safety measures that employers with workers who deliver packages can implement in order to reduce the risk of COVID-19 exposure. Before that, OSHA released an alert for retail employers that offered safety measures to protect employees working in pharmacies, supermarkets, big box stores, and other retail establishments.
Manufacturing industry best practices. Here are the safety measures that employers the manufacturing industry can implement to protect employees:
- Encourage workers to stay home if they are sick;
- Establish flexible work hours (e.g., staggered shifts), if feasible;
- Practice sensible social distancing and maintain six feet between co-workers, where possible;
- For work activities where social distancing is a challenge, consider limiting the duration of these activities and/or implementing innovative approaches, such as temporarily moving or repositioning workstations to create more distance or installing barriers (e.g., plexiglass shields) between workstations;
- Monitor public health communications about COVID-19 recommendations for the workplace and ensure that workers have access to and understand that information;
- Train workers on how to properly put on, use/wear, take-off, and maintain protective clothing and equipment;
- Allow workers to wear masks over their nose and mouth to prevent spread of the virus;
- Encourage respiratory etiquette, including covering coughs and sneezes;
- Discourage workers from using other workers’ tools and equipment;
- Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus;
- Promote personal hygiene. Where workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide disinfectants and disposable towels workers can use to clean work surfaces; and
- Encourage workers to report any safety and health concerns.
More to come. OSHA said it will be issuing a series of industry-specific alerts designed to keep workers safe.
|
| | | LEGAL BULLETIN
Constangy, Brooks, Smith & Prophete,LLP
By John Duke / Austin, Dallas, Boston Offices
and
Andrew Eisenberg / Boston Office
April 21, 2020
The COVID-19 pandemic may spur union organizing and complicate union relations: Part One
The coronavirus pandemic is creating a set of circumstances that present a big opportunity for organized labor and a serious challenge for non-union employers. Job security and safety are traditional issues that unions use to appeal to unorganized employees, and these issues are looming large right now. Many employees are being asked to continue working under conditions that they may perceive as unsafe. Others are being laid off or furloughed without pay in numbers not seen since the Great Depression of the 1930s and must rely on unemployment benefits which may be less than what they normally earn and could run out if this situation continues into the summer and fall. All of this is potential fodder for union organizing, and many observers are predicting a wave of strikes (which already may have begun) and a large spike in union organizing, both during and particularly after the crisis, especially among employees working in essential businesses. One historian has noted the parallel to the strike wave that accompanied the “Spanish Flu” in 1919 when one-fifth of American workers walked off the job.
Despite the weakness of organized labor in the past several decades, unions do not appear to be letting this opportunity pass, and there are many new groups, like Fight for 15, that are trying to capitalize on the current situation. The news has been filled with reports of an increase in labor actions. Instacart shoppers, for example, went on strike demanding hazard pay and protective equipment. Sanitation workers in Pittsburgh and construction workers in Massachusetts staged strikes over safety issues. There have been protests and work stoppages at food-processing and meatpacking plants, distribution centers, and supermarket chains around the country. And this may be only the beginning.
The potential for labor disputes will grow as businesses that have closed begin to reopen and contend with the type of issues that already have plagued essential businesses that are continuing to operate -- demands for protective equipment like masks and gloves, hazard pay, additional paid sick time and leave beyond what is provided by law, wage demands, disability accommodations, and, of course, a variety of real and perceived safety concerns. Some laid off or furloughed workers have lost their employer-sponsored and partially-subsidized health insurance. These are all issues around which unions historically have organized, and thus every decision made by an employer in response to this pandemic could be used by a union either now or in the future as part of an organizing campaign. Moreover, some unions have been decimated financially by the pandemic, so they may have an added incentive to increase their organizing efforts in hopes of replenishing their coffers.
The National Labor Relations Board temporarily suspended board-conducted elections on March 19, due to the “extraordinary circumstances related to the COVID-19 pandemic,” but the Board has since resumed business, although each Regional Director has been given discretion about how to handle petitions for representation elections. Some regions continue to postpone elections, others are conducting elections by mail ballot, and a few regions appear to still be holding hearings and on-site elections. So unions are not precluded from filing petitions for elections or trying to organize. Where the NLRB is conducting mail ballot elections, employers may find themselves at a serious disadvantage. Mail ballot elections are more vulnerable to the destruction of the required “laboratory conditions” than manual elections because, as a practical matter, the normal constraints on union campaigning when employees are casting their ballots are absent, which increases the potential for a union to directly influence the vote.
Moreover, in recent years, unions have become experienced in organizing using websites specially created for this purpose and communicating with employees by email. This electronic organizing has been facilitated by the new NLRB rules enacted in recent years that permit unions to collect and submit authorization cards electronically and require employers to provide unions with employee contact information (including email addresses) early in the election process. Shelter-in-place orders, travel bans, and closed facilities thus won’t necessarily insulate employers from union organizing, and those companies that continue to operate brick-and-mortar facilities remain targets for traditional union organizing tactics.
The NLRB’s election rules provide a very short window, sometimes as short as 18 to 24 days, between the filing by a union of the petition for an election and the actual election, during which an employer can organize and deliver a response. Even in industries that in the past have seen little union organizing, current circumstances may make such history an unreliable predictor of future vulnerability. Employers need to take steps now in order to be able to respond effectively and legally. What should you be doing?
1 - Statutory Supervisors. You should identify your “statutory supervisors,” as defined by the National Labor Relations Act. The NLRA defines the term “supervisor” to include the following:
[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Statutory supervisors are considered agents of the employer. If they violate the law, then the employer will be held responsible. So, it is critical to train them to avoid this. It also is important to train statutory supervisors to avoid unintentionally granting a union voluntary recognition without a secret ballot vote by the employees. Statutory supervisors may not be included in a bargaining unit or represented by a union. They are considered part of management. You therefore do not want to treat an employee as a statutory supervisor who isn’t, or vice versa. Identifying statutory supervisors can sometimes take time – time that you won’t necessarily have once an election petition is filed. Identifying and training statutory supervisors should be done now as part of a proactive union avoidance plan.
2 - Personnel Policies. Once a union has begun an organizing campaign, you may not be able to put in place new policies or fix existing ones. Some of those policies can be critical to your ability to effectively operate your business while it is the target of a union organizing campaign, like those that address solicitation and distribution on your property, use of your email system, and bar non-employee visitors from your property. Policies that violate the NLRA are likely to be unenforceable, and attempting to enforce them will be an unfair labor practice. Nor may you be able to fix the policy once organizing has begun. Equally problematical is an attempt to implement a new restrictive policy or tighten an existing one. Thus, all your policies need to be reviewed for legal compliance before union organizing begins.
3 - Communications Plan. Every employer has the right to respond to a union’s campaign claims and allegations. Some of these claims are standard in every organizing campaign, and a response can be prepared before it may be needed. Other claims can’t be anticipated – for example, you may need to defend how you responded to this pandemic. Since there usually isn’t much time between the filing of an election petition with the NLRB and the actual election, you should prepare as much of your communications plan as possible now.
One note of caution for businesses with between 500 and 10,000 employees who receive loans under the Coronavirus Aid, Relief, and Economic Security (CARES) Act: Section 4003 of the Act includes some serious restrictions concerning labor relations that a business taking a loan needs to consider. In particular, it provides that the business will need to “remain neutral in any union organizing effort for the term of the loan.” It is unclear exactly what “remain neutral” means. However, common provisions in neutrality agreements with unions prohibit the employer from expressing its opposition to being organized and sharing with its employees the downside of working for a union company. Thus, employees make a decision after hearing only the union’s side of the story and not a balanced perspective, which may make them more likely to vote for union representation. “Remain neutral” also might mean that the employer must grant the union access to its property and employees, another common term of neutrality agreements. It could even mean that an employer must agree to a card check that would supplant a formal secret ballot election conducted by the NLRB. Such a process could give a union a great advantage by allowing it to win recognition based upon authorization cards or a petition. Although the legality of the CARES Act language may be subject to challenge, employers nevertheless should carefully evaluate the risks and benefits of taking such a loan and consider including terms to allow prepayment of the loan so as to end its “term” early and thus not be bound by the “remain neutral” provisions in the event of union organizing.
4 - Proposed Bargaining Units. Another significant factor in winning or losing a union election often is who gets included in the proposed bargaining unit and thus gets to vote. When a union files its petition with the NLRB for an election, it will ask to represent a particular group of employees – the “bargaining unit.” The NLRB’s rules allow an employer to propose a different bargaining unit from the one the union requested, but you won’t have much time to figure out what is the most advantageous bargaining unit for the company. This analysis is something that should be done beforehand based upon your understanding of your workforce and feedback from your supervisors and employee surveys. Don’t wait until you have to state your position to the NLRB to begin figuring out what it should be, because you may be forced to rely on just your gut instinct. Instead, develop your position now as to the most advantageous bargaining unit for your company.
5 - Consultants. Some employers use their own supervisors to communicate with employees about whether to vote for a union. However, it can be difficult to operate your company with many supervisors engaged in a union campaign. The alternative is to retain a consultant to help you conduct the communications program. A decision about whether to use a consultant should be made well before you face a union organizing campaign, since a consultant will be more effective if you already have been working together, as opposed to your waiting to hire someone when the election petition appears in the mail.
6 - Public Relations Plan. If you don’t have a relationship with a public relations firm, you may want to engage one now. Unions will often target their campaign as much toward the public and your clients, customers, vendors, and suppliers as toward the employees whose vote the union wants. Managing the impact of union organizing on these relationships may be critical to a company’s ability to prevail.
Now is not the time to be complacent and assume that unions don’t pose a potential threat to your company. Instead, this is the time to plan proactively so that you can respond effectively within the limits allowed by federal and state law. Attorneys in the Labor Relations Practice Group at Constangy are available to assist you with such planning.
W. Jonathan Martin, II
T: 478.750.8600
Email: jmartin@constangy.com
& Leigh E. Tyson
T: 404.525.8622
Email: ltyson@constangy.com
|
| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 04/22/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 04/22/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases: No. Cases (%)
Total 20740 (100%)
Hospitalized 3959 (19.09%)
Deaths 836 (4.03%)
|
| |
|
Georgia Employers' Association |
|
|
| |
