CDC issues new guidance on reopening the workplace

The U.S. Centers for Disease Control and Prevention (CDC) recently released new guidance (the Guidance) and a flowchart (the Flowchart) detailing how states can safely reopen businesses and schools in the wake of the COVID-19 pandemic. The 60-page guidance document covers a wide range of topics, including surveilling, contact tracing, and controlling COVID-19 cases.

The Guidance provides generalized recommendations, while simultaneously cautioning employers to tailor the Guidance based on the state and industry within which the employer operates. For each set of recommendations, the CDC creates a three-step program to safely scale up operations, with Step One requiring the most stringent measures of mitigation and Step Three requiring the least. The Guidance also provides more specific recommendations that highlight additional considerations for reopening mass transit, childcare programs, day camps, restaurants, and bars, as well as businesses that employ workers at high risk for severe illness due to COVID-19. Continue Reading

Oakland passes COVID-19 paid sick leave

On May 12, 2020, Oakland passed an emergency ordinance joining Los Angeles, San Francisco, and San Jose in requiring employers to provide paid sick leave to employees for COVID-19-related reasons.  Codified as Code of Ordinances Chapter 5.94 and known as the “Protecting Workers and Communities During a Pandemic – COVID-19 Emergency Paid Sick Leave Ordinance” (Emergency Paid Sick Leave), Oakland’s new paid sick leave requirements aim to fill the gaps in the coverage provided by the federal Families First Coronavirus Relief Act (FFCRA).

Covered employers

Unlike the FFCRA, which only applies to employers with fewer than 500 employees, Oakland’s new paid sick leave requirements apply to all private employers, regardless of the number of employees, but subject to the exemptions noted below.  Covered employers must pay the Emergency Paid Sick Leave payment by no later than the payday for the next regular payroll period after the employee takes Emergency Paid Sick Leave, and no more than 14 days after the employee takes Emergency Paid Sick Leave. Continue Reading

OSHA revises COVID-19 recordkeeping requirements

As numerous states begin to reopen, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently announced a revised recordkeeping enforcement memorandum, effective May 26, 2020, that outlines when employers must record COVID-19 cases as a work-related illness.  This revised guidance replaces OSHA’s previous April 2020  memorandum and removes the relaxed application of the agency’s recordkeeping requirements contained therein.  Thus, OSHA’s prior, noticeably more stringent requirements apply as of May 26, 2020.  OSHA has also updated its Interim Enforcement Response Plan for Coronavirus to reflect the updated enforcement guidance, and indicated that the agency is increasing in-person inspections at all types of workplaces.

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Update on everything you need to know about New York’s business reopening plan

As we previously detailed here and here, New York State Governor Andrew Cuomo recently outlined guidelines for when Empire State businesses can reopen and return to “in-person” operations. Under the Governor’s plan, reopenings are being determined, first, on a region-by-region and then, once a region is eligible to reopen, on a phased industry-by-industry basis.

Since the Governor made his initial reopening announcement, the State has published a slew of materials to assist businesses as they reopen. To further assist businesses, we have created a central location – i.e., this post – from which these materials can be accessed. Following, therefore, are links to, and details regarding, these important materials:

  • General information about Governor Cuomo’s “New York Forward” reopening plan can be found here. In conjunction with “New York Forward,” the Governor has also released this comprehensive reopening guide, which addresses business reopenings plus a host of other COVID-19-related issues.
  • To help businesses determine whether they can reopen within a particular region, the State has developed a business reopening lookup tool, which can be found here. The tool is intended to “help you determine whether or not your business is eligible to reopen, and the public health and safety standards with which your business must comply.”

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New Jersey slowly begins lifting operating restrictions for certain industries

New Jersey started the reopening process, lifting restrictions on certain business operations the State previously shut down in response to the COVID-19 pandemic. As employers in these industries resume operations, there are many legal considerations, including adopting policies and practices to ensure compliance with the State’s required mitigation efforts.

While New Jersey Governor Phil Murphy is permitting many outdoor industries to reopen as the summer season approaches, these businesses will remain subject to an array of legal requirements. The specific requirements for each industry are laid out in a series of Executive Orders signed by Governor Murphy, including: EO 142 (non-essential construction, non-essential retail), EO 143 (beaches & boardwalks), EO 146 (charter boats and watercraft rentals), and EO 147 (outdoor recreation). While the exact requirements vary by industry, all of the requirements are aimed at maintaining social distancing, limiting person-to-person contact, and mitigating exposure risks for employees and customers.

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Virginia update: Governor loosens pandemic restrictions, except in Northern Virginia, Richmond City, and Accomack County

On May 8, 2020, Virginia Governor Ralph Northam issued Executive Order 61 outlining Phase One of the commonwealth’s plan to gradually ease temporary public health and business restrictions related to COVID-19, effective May 15, 2020, through at least June 10, 2020. Since issuing Executive Order 61, however, Governor Northam issued Executive Order 62 delaying this reopening for the following jurisdictions through at least May 28, 2020: the counties of Arlington, Fairfax, Loudoun, and Prince William, the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, and the Towns of Dumfries, Herndon, Leesburg, and Vienna. The order stated that the Northern Virginia region has about a 25-percent rate of positive tests for COVID-19, while the rest of the commonwealth is closer to 10 percent. In addition, just hours before reopening was set to take effect, Governor Northam amended Executive Order 62 to also exclude the City of Richmond and the County of Accomack from the May 15 reopening.

The Executive Orders outline the following Phase One requirements for Virginia (except for the excluded counties): Continue Reading

New York announces additional reopening guidance, including a regional monitoring dashboard

As we previously detailed, last week New York State Governor Andrew Cuomo outlined guidelines for when Empire State businesses can reopen and return to “in-person” operations.  Under the Governor’s plan, reopenings will be determined, first, on a region-by-region and then, once a region is eligible to reopen, on a phased industry-by-industry basis.

In the wake of Governor Cuomo’s announcement, New York businesses have been clamoring for additional information on the reopening requirements.  Yesterday, the Governor provided such information – specifically, he:

  • Unveiled a regional monitoring dashboard – available here – showing where each of the Empire State’s 10 regions stands with regard to satisfying the Governor’s criteria for reopening.

According to the dashboard, the Finger Lakes, Southern Tier, and Mohawk Valley regions have each satisfied all seven of the Governor’s reopening criteria.  This means that, starting on May 15 (when the State’s “stay at home” order lifts), these three regions can likely reopen “phase one” businesses, which include construction, manufacturing, wholesale trade, select retail for curbside pickup only, agriculture, forestry, and fishing (a comprehensive list can be found here).

New York City has, thus far, satisfied the fewest reopening criteria – four – of any region.

  • Released a comprehensive, 51-page “New York Forward Reopening” plan –available here. The plan addresses business reopenings plus a host of other COVID-19-related issues.
  • Announced that certain low-risk businesses and recreational activities, including landscaping, gardening, tennis, and drive-in movie theaters, will reopen statewide on May 15.

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California Executive Order expands workers’ compensation eligibility for employees diagnosed with COVID-19

On May 6, 2020, Governor Gavin Newsom issued Executive Order N-62-20, which dramatically expands workers’ compensation eligibility for employees who are diagnosed with COVID-19, as part of his continued plan to create a robust safety net for California workers. The Order creates a rebuttable presumption that employees who test positive for or are diagnosed with COVID-19 within 14 days of performing work at their place of employment contracted the virus while at work.

To be entitled to this presumption, an employee must show: (1) the employee was diagnosed with or tested positive for COVID-19 within 14 days of performing work at the employee’s place of employment and under the employer’s direction; (2) the work day at issue was on or after March 19, 2020; (3) the place of employment at issue was not the employee’s place of residence; and (4) when the employee was diagnosed with COVID-19, the diagnosis was done by a California board-certified physician and confirmed by further testing within 30 days of the initial diagnosis.

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Returning to work during the COVID-19 pandemic: Employer’s rights and obligations to high-risk workers

The Equal Employment Opportunity Commission (EEOC) updated and expanded a Technical Assistance Publication on May 5, 2020, and then again on May 7, 2020, focusing on employer obligations under the Americans with Disabilities Act (ADA) and related laws during the COVID-19 pandemic. The EEOC’s guidance comes as many states are reopening their economies and allowing businesses to admit employees back into the workplace.

The Question-and-Answer format of the updated publication reminds employers of their obligation to continue to provide reasonable accommodations in the workplace, even in the middle of a pandemic. Of particular interest to employers are situations where the worker is already known to have a medical condition that the Centers for Disease Control and Prevention (CDC) has flagged as putting the individual at higher risk for severe illness from COVID-19. The full CDC list is available here, and includes people with moderate to severe asthma, severe obesity, diabetes, and many other impairments. The EEOC’s position regarding the employer’s rights and obligations when returning such individuals to the workplace has two key parts.

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Pennsylvania’s governor issues additional requirements for businesses currently authorized to be open

On May 4, 2020, Pennsylvania Governor Tom Wolf issued a document titled “Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency” (the Business Guidance or the Guidance). The Business Guidance contains the latest requirements applicable to businesses during Pennsylvania’s Red, Yellow, Green phased reopening approach. These new requirements are directed at businesses already conducting in-person operations during the Red phase, and those businesses preparing to open in-person operations in counties designated in the Yellow phase. The governor’s Process to Reopen Pennsylvania has more information regarding Pennsylvania’s phased reopening approach. Briefly, in counties designated as Red phase, only businesses designated as life-sustaining or that otherwise obtained exemptions are permitted to lawfully operate. In counties designated as Yellow phase, some identified additional businesses may lawfully operate subject to certain requirements. A future Green phase would allow for all in-person business to reopen without special state requirements, subject to general adherence to guidelines in place at that time provided by health authorities such as the federal Centers for Disease Control and Prevention and the Pennsylvania Department of Health (DOH). Continue Reading

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