COVID-19: News and Updates |
| Special #30 - May 01, 2020 |
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Articles and Updates Today
- Constangy, Smith, Brooks & Prophete,LLP Coronavirus: Return to Work FAQs
- ¶46,908 OSHA enforcement on the decline, enforceable COVID-19 guidance absent, NELP says — AGENCY GUIDANCE, May 1, 2020
- ¶46,910 Building trades federation, research and training center outline COVID-19 protections — FEDERAL NEWS, May 1, 2020
- ¶46,909 Trump EO keeps meat and poultry processors up and running amid pandemic — FEDERAL NEWS, May 1, 2020
BY ROBIN SHEA ON 5.1.20 - 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.
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| | | ¶46,908 OSHA enforcement on the decline, enforceable COVID-19 guidance absent, NELP says — AGENCY GUIDANCE,
From: GEA's HR Answers now May 1, 2020
A National Employment Law Project (NELP) briefing has put OSHA under a microscope and its findings allegedly show that the agency tasked with protecting workers in the most dangerous jobs has been seriously weakened under the Trump administration. As NELP sees it, it’s not surprising that during the COVID-19 pandemic, OSHA has "completely abdicated its responsibility to ensure that employers keep workers safe on the job."
The briefing notes that 16,000-plus workers have already fallen ill and hundreds have died from COVID-19, including workers in hospitals, first response, nursing homes, meat and poultry plants, warehouses, grocery stores, and mass transit, and that the workers in many of these critical industries are disproportionately workers of color.
No enforceable coronavirus guidance. Yet, OSHA has not issued any enforceable COVID-19-specific requirements, practices, or policies that employers must implement to protect workers, according to NELP. Further, the federal agency not doing on-site enforcement and has no COVID-19-specific mandates for employers. But as the number of workers infected and dying from the coronavirus grows, and as the illness spreads in communities where workers live, it is clear that a voluntary approach to worker safety is not mitigating this public health disaster, NELP said. Communities of color are especially paying the price for what it calls a federal failure.
Number of inspectors dramatically down. Despite a promise by the Trump administration that the number of workplace safety and health inspectors would increase by 2019, OSHA now has the lowest number of on-board inspectors in the last 45 years, the briefing found. According to numbers just released, federal OSHA now has a total of 862 inspectors to cover millions of workplaces—lower than the number of inspectors released last March, when the agency announced it would be increasing the number of inspectors. At this staffing level, it would take the agency 165 years to inspect each workplace under its jurisdiction just once, according to NELP.
Top leadership jobs vacant. OSHA has also neglected to fill 42 percent of its top leadership career positions, leaving the agency without requisite expertise and direction to protect workers, NELP found. Key positions such as the director of enforcement, director of training, director of whistleblower protections, and regional directors have been vacant for years. Right now, these unfilled positions are partially staffed by employees who are also holding another job—doing two jobs at once.
Number of inspections down. The decrease in the number of inspectors has directly led to a precipitous drop in the overall number of inspections conducted by federal OSHA, as well as a drop in the number of more complicated inspections, according to the NELP briefing. New data reveal that the number of OSHA inspections conducted during the first three years of the Trump administration is thousands of inspections per year lower than any three-year period under the Bush or Obama administrations. The average number of OSHA inspections per year under the Trump administration is more than 5,000 inspections less per year than the average number of inspections under the Obama or Bush administrations.
The briefing points to a substantial body of empirical evidence—including a recent landmark study by the Business Schools of Harvard University and the University of California at Berkeley, as well as studies by the Rand Corporation—which found that OSHA inspections result in substantially and persistently reduced rates of serious injuries. When inspections are reduced, there is a direct impact on worker safety.
Fewer more complex inspections. As the total number of inspections declines, OSHA has also cut back on the number of more complicated, labor-intensive inspections. A lack of resources has led to:
- A 25 percent drop in heat-related inspections; a 66 percent drop in the number of inspections related to musculoskeletal injuries;
- A 27 percent drop in the number of inspections where OSHA measures workers’ chemical exposures; and
- A 38 percent drop in the highest penalty "significant cases."
NELP said that OSHA is cutting back on these critical inspections despite the fact that musculoskeletal disorders are the top occupational illness faced by workers, and the country has had record heat levels over the last few years.
Enforcement publicity minimal. Another move that has further weakened OSHA’s ability to ensure safe conditions is that the agency is only publicizing a handful of its inspection results, drastically reducing the number of enforcement press releases by more than 50 percent from the previous administration. While OSHA conducted more than 12,000 inspections in the second half of 2019, the agency only issued 84 press releases about violations cited. During the last six months of 2016, in contrast, OSHA issued 214 such releases.
NELP noted that these are not national releases but rather are released in the inspection locality. As a result, some companies may never hear about any OSHA activity. "The lack of publicity about agency enforcement actions seriously reduces any deterrent impact of OSHA’s already limited enforcement activities," the briefing said. A new study clearly found that publicizing OSHA citations "led other facilities to substantially improve their compliance and experience fewer occupational injuries. The estimates imply that OSHA would need to conduct 210 additional inspections to achieve the same improvement in compliance as achieved with a single press release."
Fatality and catastrophe inspections rise. OSHA’s inspection policies have for decades required the agency to conduct inspections after reports of a work-related fatality or catastrophe, defined as more than three workers hurt. The number of federal OSHA inspections opened as a result of a workplace fatality or catastrophe has increased under the Trump administration "to levels that are the highest in over a decade," according to the briefing. OSHA opened investigations into 837 workplaces due to a fatality or catastrophe in FY 2017, but in FY 2019, that number rose by more than 150 workplaces to 978 opened investigations of fatalities or catastrophes.
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| | | | ¶46,910 Building trades federation, research and training center outline COVID-19 protections — FEDERAL NEWS,
From: GEA's HR Answers Now May 1, 2020
The North America’s Building Trades Unions (NABTU) and the Center for Construction Research and Training (CPWR) have developed a new national standard for infectious disease exposure control practices for U.S. construction sites. The "new national framework" outlines planning and implementation elements with strong minimum standards, screening policies, and the requirement of a comprehensive employer exposure control plan comprised of control measures, symptom checking, social distancing, training, hygiene, and decontamination procedures.
The new guidelines are intended to prevent disease, disability, and death caused by infectious disease exposure in lieu of federal action by OSHA.
OSHA "alert" not sufficient? Notably, OSHA has issued an alert for the construction industry, providing "tips" that "can help reduce the risk of exposure to the coronavirus." But NABTU and CPWR are apparently likely looking for something more substantial and permanent.
"The COVID-19 pandemic clearly underscores the need for and value of a strong, adaptable, and multi-purpose exposure control standard to prevent the spread of infectious diseases on U.S. construction sites," said NABTU President Sean McGarvey. "Amid growing concerns across various industries regarding workplace safety in lieu of federal actions, the building trades are trying to do our best to protect our members and contractors on the job, and—for that matter—everyone in the construction industry."
Designated officer, telework, and training. The guidelines call for a COVID-19 designated officer at every job site and planning for office staff to be able to work from home. They also recommend training workers with the most recent information on the hazard and control measures, including social distancing, handwashing facilities on site, and how high-touch surfaces are disinfected.
Screening measures. The guidelines call for these screening measures:
- Ask workers to self-identify symptoms of fever, coughing, shortness of breath, chills, muscle pain, headache, sore throat, and new loss of taste or smell each day: before the shift, mid-shift, and at home.
- Screen all workers for fever at the beginning of shifts and if they become ill on the job. Thermometers must be ‘no touch’ or ‘no contact.’
- Workers with COVID-19 and other workers who have had close contact with those workers should be put on sick leave. Local health departments should be notified. The area where the sick person worked should be immediately disinfected.
- Ensure affected workers receive paid sick leave as required under the Families First Coronavirus Response Act (FFCRA). The Department of Labor’s poster about paid sick leave under the FFCRA should be posted at the workplace.
Social distancing. The guidelines outline several distancing procedures:
- Create at least six feet of space between workers by staging/staggering crews.
- Modify work schedules to stagger work, provide alternating workdays, or extra shifts to reduce the total number of employees on a jobsite at any given time to ensure physical distancing. The recommendation for shifting individual employees should be at the sole discretion of the Local Business Manager or their Representative.
- Identify choke points where workers are forced to stand together, such as hallways, hoists and elevators, ingress and egress points, break areas, and buses, and put in place policies to maintain social distancing.
- In elevators and personnel hoists, ensure six feet distance between passengers in all directions and equip the operator with appropriate respirator and other personal protective equipment.
- Minimize interactions when picking up or delivering equipment or materials. Organize the placement of materials to minimize movement on the work site.
Decontamination. As to worksite decontamination, the guidelines call for cleaning and disinfecting high-touch surfaces on job sites and in offices frequently per CDC guidelines—such as shared tools, machines, vehicles and other equipment, handrails, doorknobs, and portable toilets. Disinfectants should also be available to workers throughout the worksite; supplies should be frequently replenished.
Personal hygiene. Soap and running water should be provided whenever possible on all job sites for frequent handwashing under the guidelines. Where it’s not possible to provide running water, tell workers the reasons why. Provide alcohol-based hand sanitizers with greater than 60 percent ethanol or 70 percent isopropanol as a backup only if providing running water is impossible. Encourage workers to leave their workstations to wash their hands before and after going to the bathroom, before eating, and after coughing, sneezing, or blowing their nose.
The framework also outlines respiratory guidelines, and recommends that those who work in health care facilities be trained in Infection Control Risk Assessment (ICRA), pointing to the CPWR training program.
About the CPWR. Among other things, the CPWR says that in 1990, it began a series of cooperative agreements with the National Institute for Occupational Safety and Health (NIOSH) (part of the CDC) focusing on occupational safety and health in construction, "with an eye to building a ‘safety culture’ industry wide—safe and healthful working conditions along with lowered costs and improved industry productivity."
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| | | ¶46,909 Trump EO keeps meat and poultry processors up and running amid pandemic — FEDERAL NEWS,
From: GEA's HR Answers Now May 1, 2020
On April 8, President Trump issued an Executive Order (EO) invoking the Defense Production Act (DPA) to "ensure the continued supply of meat and poultry" during the national emergency prompted by the COVID-19 pandemic. "It is important that processors of beef, pork, and poultry...in the food supply chain continue operating and fulfilling orders to ensure a continued supply of protein for Americans," Trump said.
Coronavirus outbreaks. Trump cited outbreaks of COVID-19 among workers at some processing facilities that have led to the reduction in production capacity, and recent actions in some states that have led to the complete closure of some large processing facilities. According to the EO, these actions may differ from or be inconsistent with interim guidance recently issued by the CDC and OSHA, Meat and Poultry Processing Workers and Employers, providing for the safe operation of such facilities.
No closures. According to the EO: "Such closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency. Given the high volume of meat and poultry processed by many facilities, any unnecessary closures can quickly have a large effect on the food supply chain."
Accordingly, Trump directed that the Secretary of Agriculture, Sonny Perdue, take appropriate action to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA. The Secretary will use the authority under Section 101, in consultation with the heads of such other executive departments and agencies as he deems appropriate, to determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with CDC and OSHA guidance for the operations of meat and poultry processing facilities.
The Secretary is also charged with issuing orders and adopting and revising appropriate rules and regulations as may be necessary to implement the EO.
More to come? The White House may be foreshadowing additional action in the future. The EO also directs that the Secretary may identify additional specific food supply chain resources that meet the criteria of Section 101(b) of the DPA.
OSHA "enforcement discretion." Labor Department Solicitor Kate O’Scannlain and Principal Deputy Assistant Secretary for OSHA Loren Sweatt issued a joint statement on meat and poultry processing facilities in response to the President’s EO, pointing to OSHA’s enforcement guidance indicating that the federal health and safety agency will use enforcement discretion for employers adhering to appropriate guidance, including the Joint Meat Processing Guidance.
As that guidance states, employers should conduct worksite assessments to identify COVID-19 risks and prevention strategies and then implement them. "It is important that employers seek to adhere to this Guidance," according to the joint statement. "To the extent employers determine that certain measures are not feasible in the context of specific plants and circumstances, they are encouraged to document why that is the case. In the event of an investigation, OSHA will take into account good faith attempts to follow the Joint Meat Processing Guidance" (emphasis ours).
OSHA does not plan to cite employers that adhere to the guidance.
States may not order closures. Notably, the joint statement makes clear that the EO limits the ability of state officials who may seek to act in the best interests of their workers and the public in order to halt the spread of COVID-19. "[B]ecause of the President’s invocation of the DPA, no part of the Joint Meat Processing Guidance should be construed to indicate that state and local authorities may direct a meat and poultry processing facility to close, to remain closed, or to operate in accordance with procedures other than those provided for in this Guidance," according to the joint statement.
DOL and litigation. The joint statement also explained that courts often consider compliance with OSHA standards and guidance as evidence in an employer’s favor in litigation. "Where a meat, pork, or poultry processing employer operating pursuant to the President’s invocation of the DPA has demonstrated good faith attempts to comply with the Joint Meat Processing Guidance and is sued for alleged workplace exposures, the Department of Labor will consider a request to participate in that litigation in support of the employer’s compliance program," O’Scannlain and Sweatt said. "Likewise, the Department of Labor will consider similar requests by workers if their employer has not taken steps in good faith to follow the Joint Meat Processing Guidance."
Employers may contact OSHA for compliance assistance or the OSHA On-Site Consultation Program for assistance in applying the joint guidance to their worksites; they may also contact CDC for assistance.
What about the workers? The American Federation of Government Employees (AFGE) was quick to react. "The president’s order will do nothing to improve the unsustainable status quo, where 137 food inspectors and thousands of factory employees across the nation have already tested positive for the coronavirus," said AFGE National President Everett Kelley. "Without enforceable protections for both front-line plant workers and federal food inspectors, the president’s action will result in more preventable exposures and possibly deaths."
To date, two federal inspectors have died after contracting the virus, according to the union.
"Federal food inspectors entering slaughterhouses and meat processing facilities lack basic protective equipment, including face masks and hand sanitizer, and social distancing is impossible since they must work nearly shoulder-to-shoulder with front-line plant employees," said Paula Schelling, acting president of AFGE Council 45, which represents 6,500 federal food inspectors nationwide.
"While the president’s order requiring plants to remain open is mandatory, compliance with the government’s safety guidelines is not," Schelling added. "The health and safety of federal inspectors and plant workers is in the hands of an industry that the administration is now pressuring to stay open, no matter the costs."
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COVID-19 return to work quiz!
POSTED IN AMERICANS WITH DISABILITIES ACT, CORONAVIRUS, DISCRIMINATION, FAMILIES FIRST CORONAVIRUS RESPONSE ACT, FLSA, PAID LEAVE, QUIZ, WAGE-HOUR
Life in general may be returning to normal after our two-month exile, and many employers are starting to bring their employees back to work. Are you ready? How much do you really know about all the thorny issues that can arise as people are returning to work while the pandemic is still ongoing? Take our quiz and find out!
As usual, the answers will appear at the end of each question, so you can cheat all you want -- we'll be none the wiser. And if you do well, there will be a special prize, selected especially for you!
Ready? Here we go!
No. 1: Your plant manager wants to take employees' temperatures and test them for COVID-19 before letting them return to work. Assuming the plant manager's plan is put into place, has your company violated the Americans with Disabilities Act?
A. Yes, because the plant manager failed to engage in the interactive process.
B. Yes, because this is a "medical examination" within the meaning of the ADA, which means that it must be done post-offer, pre-employment. With current employees, the testing has to be job-related and consistent with business necessity or undertaken to prevent a "direct threat" to the health or safety of the individual employee or others.
C. No, because if the employees don't like it, they can stay home and collect their sweet, fat, federal unemployment.
D. No, because the Equal Employment Opportunity Commission has said that this type of "preemptive" medical testing is lawful while the National Emergency is in place, provided that the employer does not discriminate and that the testing records are kept confidential as required by the ADA.
ANSWER: D. In normal times, B would have been the right answer, but the EEOC has made exceptions that apply to contagious diseases during National Emergencies. (The last exception to the general rule was made in 2009, during the H1N1 pandemic.) For now, it is lawful for employers both to test for COVID-19 and to take temperatures of employees. Employers should treat all similarly situated employees the same to avoid discrimination claims, and they must keep any records related to the testing confidential and separate from the employees' personnel files.
No. 2: Your facility is recalling employees back to work starting next week. Some have told you they don't want to return yet. Which of the following is NOT potentially a valid reason for staying out of work?
A. "I can make more money collecting my sweet, fat federal unemployment than I can working at this crummy job. See ya on August 1!"
B. "I have an immune disorder, and my doctor says COVID-19 could kill me. Literally."
C. "I would love to get back to work, but I know that you are not following OSHA and CDC guidelines on sanitizing the workplace. When you do that, I'll come back, but otherwise, I don't feel safe coming back."
D. "I am 70 years old, and I'm fine right now, but I'm worried about what would happen to me if I were exposed to COVID-19, given my age. Could I continue working from home for another month or so? I really do want to come back."
E. "My kids are out of school, and my child care right now is spotty at best. Could I continue working from home until I can get a regular babysitter? I really do want to come back."
F. "Intellectually, I understand that you have taken all the necessary safety/health precautions, but I have an anxiety disorder, and with COVID-19, I'm having panic attacks whenever I go somewhere that is open to the public or to large numbers of people. My psychiatrist and I are working on this, and I can provide a note. Could I continue to shelter in place a little longer?"
G. "I live across the state line from the facility, and we are still under a stay-at-home order. Trust me, I want to come back to work! But I don't want to violate our state order. Can I stay at home until my state's order is lifted?"
ANSWER: A is the only illegitimate reason for refusing to come back to work. B, C, E, F, and G would all require at least a good-faith attempt at accommodation on the part of the employer. For D, accommodation isn't legally required, but the employer should try to accommodate the older employee's legitimate concern.
Regarding "Employee A," one of the requirements for sweet, fat federal unemployment is that suitable work not be available. If you have work available, and your employee is choosing to stay home only because the unemployment benefit pays more than you do, then that should disqualify the employee from receiving benefits. (And that might get your employee back to work!)
"Stay safe, y'all."
No. 3: On April 10, you had only 401 active employees because many were on furlough. During that time, Debbie -- who is white -- asked for time off to care for her kids who were out of school, which had closed because of COVID-19. You granted Debbie paid leave, in compliance with the Families First Coronavirus Response Act.
Last week, you brought back the furloughed employees, and so you now have 525 active employees. Today, Dawn, who is African-American, asks you for time off under the FFCRA to care for her kids, who are also out of school, which had closed because of COVID-19. Are you required to approve Dawn's request?
A. Yes. If you say yes to Debbie and no to Dawn, Dawn would have a valid claim of race discrimination based on your disparate treatment of two similarly situated employees.
B. Yes. The FFCRA applies only to employers of fewer than 500 employees, but since you were under 500 on the law's effective date of April 1, you're still covered and must comply.
C. No. The U.S. Department of Labor says that coverage under the FFCRA is determined at the time that an employee requests leave. So you were covered on April 10 because you had fewer than 500 employees, and you are no longer covered as of last week, when your count got above 500.
ANSWER: C. For "crazy"! This is really the way that the DOL is applying the "employer coverage" provisions of the FFCRA. So, for you employers who are close to the 500-employee mark, there may be times when you are covered and required to grant paid leave, and other times when you are not covered and not required to grant paid leave. If Dawn takes you to court, you can argue that she and Debbie are not similarly situated. Debbie asked for leave when you were covered by the FFCRA, but Dawn asked when you weren't covered.
No. 4: When you're doing performance evaluations in August 2020, you can "ding" the people who were unproductive during the shelter-in-place period.
TRUE
FALSE
IT DEPENDS
ANSWER: It depends. Although normally there is no problem with "dinging" unproductive employees on their performance reviews, that could lead to unfair results during the shut-in period that is coming to a close. Some jobs can't be performed remotely, so you wouldn't want to penalize the employees in those jobs. Other employees' jobs can be performed remotely, but the employees may have more distractions during the business day than their co-workers (such as kids whose schools are closed, or caregiving responsibilities). If you are going to include this period in your performance evaluations at all (and you don't have to), be sure to make allowances for employees who are less productive, but for legitimate reasons.
WANT TO GET UP TO SPEED ON RETURN-TO-WORK ISSUES?
Then please visit our Coronavirus Return to Work FAQ page, where we have the scoop on almost everything you'll need to know about ramping back up: Employee medical testing, safety, reasonable accommodations, paid leave, workers' comp, wage and hour, and much more!
No. 5: Your facility had to close in March and April. Your employees are coming back to work now, but their pay will be reduced by 25 percent or to the applicable minimum wage, whichever results in higher pay. Which of the following should you NOT be concerned about?
A. Having a lot of ticked-off employees.
B. Violation of the Fair Labor Standards Act.
C. Providing notice of the pay cut in accordance with state or local wage and hour laws.
D. Violation of the terms of any applicable collective bargaining agreements or contracts of employment.
E. All of the above.
F. None of the above.
ANSWER: F. (One of my lovely double negatives -- put another way, you should be worried about all of these things.) A is obvious. We'll just hope that the ecstasy of returning to work will outweigh the agony of making less money. D is also obvious. Before putting a pay reduction into place, review any contracts you have with employees and make sure you are not going to be in breach of those contracts.
C is less obvious. Many state and local wage and hour laws require you to provide notice to employees before making a negative change in their compensation. In my state of North Carolina, the notice has to be in writing and given to employees at least 24 hours in advance. Notice requirements may be more stringent in other jurisdictions.
B is the least obvious because I was deliberately being obscure. Of course, the FLSA requires only that you pay non-exempt employees at least the federal minimum wage, plus overtime if applicable. So, normally, a pay cut will not create an FLSA issue. BUT . . .
. . . if you have employees who have qualified for the administrative, executive, and some professional exemptions from the minimum wage and overtime requirements of the FLSA, and if your pay cut takes them below the current salary threshold for exempt status ($684 a week, or $35,568 annualized), then they will no longer qualify for these exemptions. That means you will have to pay them for all hours worked, plus time and a half for all hours they work in excess of 40 in a workweek. If your pay cut takes them below the threshold and you don't pay overtime, then you will have violated the FLSA.
(Since B was tricky, I'll give you 2 points if you got this one right.)
HOW'DJA DO?
4-6 points: Fantastic! Your knowledge of return-to-work issues is sick!
2-3 points: Nice job! Your return-to-work expertise will go viral, mark my words!
0-1 points: Ugh. Take some Lysol and call me in the morning.
Just kidding! You all did great!
BY ROBIN SHEA
Contributors: Susan Bassford Wilson, Patricia-Anne Brownback, Kenneth P. Carlson, Jr., James M. Coleman, Cara Yates Crotty, Thomas M. Eden, III, Deborah Hembree, Steven B. Katz, Ellen C. Kearns, F. Damon Kitchen, Angelique Groza Lyons, John E. MacDonald, Marcia McShane, Robert L. Ortbals Jr., Alyssa K. Peters, Sarah M. Phaff, David P. Phippen, Ray Poole, Angela L. Rapko, Katie M. Rhoten, Paul Ryan, Robin E. Shea, Kristine Marie Sims, David L. Smith, Stephen Stecker, Jill S. Stricklin, Jack R. Wallace, Heidi Wilbur, & Jonathan W. Yarbrough
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| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 05/01/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/01/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 168,367)
COVID-19 Confirmed Cases:
Total 27,187 Hospitalized 5259 Deaths 1147
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