Since the pandemic hit, Massachusetts has developed strict protocols for those wishing to physically enter the state. Presently, all those 18 years of age or older, as well as unaccompanied minors, must quarantine for 14 days, or otherwise provide written proof that they received a negative COVID-19 test result within 72 hours prior to arriving in MA. The penalty for non-compliance is stiff: a fine of $500 per day.
On August 27, 2020, New Hampshire updated both the Universal Guidelines for All New Hampshire Employers and Employees and the New Hampshire COVID-19 General Travel and Quarantine Guidance, & Employer Screening and Exclusion Criteria. These documents apply to “all businesses, organizations, and individual business operators for the operation of their business” and must be complied with together with any applicable industry-specific guidelines.
The Universal Guidelines serve as “the basic minimum standard that businesses must adhere to in order to maintain or begin operations.” Updates to the Universal Guidelines include a “Definitions” section and a “Chart” on page 4 which identifies when employees or volunteers must self-quarantine or isolate. The Chart serves as a guide as employers must prohibit from workplaces or activity areas all employees or volunteers who have any new symptoms of COVID-19, are diagnosed with COVID-19, have had close contact exposure to someone confirmed with COVID-19, or have had travel risk exposure (more detail below).
The updated Universal Guidelines again explain that other guidance from the Center for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and NH Department of Health and Human Services (DHHS) must be reviewed, monitored, and followed along with any applicable federal or state regulatory requirements. A link to sample communications from the CDC website is included. While citing these other government regulatory entities, it is now clear that the Universal Guidelines control. “To the extent any of the above guidance conflicts with provisions of the Universal Guidelines, then the applicable provisions of the Universal Guidelines shall control.”
The Universal Guidelines link to the DHHS’s guidance on travel and quarantine, which was updated on the same date. Both documents change the screening questions businesses must ask related to travel outside of the New England states for non-essential purposes before allowing someone into the workplace. Those who answer “yes” to the travel screening question will need to self-quarantine for 14 days and additionally get tested if experiencing new or unexplained symptoms. Specifically, the screening question under the Universal Guidelines reads:
“Have you traveled on non-essential travel in the past 14 days outside of New Hampshire, Vermont, Maine, Massachusetts, Connecticut, or Rhode Island (this includes any international travel or travel by cruise ship and any domestic travel, within the US, outside of NH, VT, RI, CT, MA or ME, regardless of the mode of transportation)?”
“Essential Travel” is defined to “include personal safety, medical care, care of others, parental shared custody, for food, beverage or medication or for work. Employees who travel outside of the New England states for personal or leisure reasons cannot rely on this exemption.” The DHHS guidance further details the limited “Exceptions to Quarantine Requirements” for those critical infrastructure employees who may have had close contact to someone suspected or confirmed with COVID-19 or traveled outside New England for non-essential purposes. Nine criteria are listed and all nine must be met for the exemption. The guidance cautions that the exceptions are not recommended and should not be standard practice.
The Universal Guidelines now identify 10 industries that have additional guidance to follow under an Addendum A. Except as noted in the Addendum and Universal Guidelines, the following industries may “resume normal operations” in NH:
- Community Arts & Music Education
- Drive-In Movie Theatres
- Driver’s Education
- Funeral Homes
- Equestrian Facilities
- Golf Courses
- Museums & Art Galleries
- Outdoor Attractions (no amusement parks)
- State Parks
Separate guidance for other industries can still be found on Governor Sununu’s Safer at Home page.
Some additional changes to the Universal Guidelines include: monitoring, cleaning and disinfecting restrooms; identifying someone as a “Safety Officer” to monitor and improve compliance with social distancing, face covering use, hand hygiene, and other protective policies; and training of employees and volunteers on the Universal Guidelines, industry-specific guidance, and other applicable guidance.
All businesses, organizations, and individual business operators must review these updates carefully to ensure that their policies and practices are in compliance with these mandates and train employees and volunteers accordingly. They should also communicate frequently with employees, volunteers, and customers about the steps being taken to lessen the spread of the virus. As we know, this guidance is subject to change as more information is learned about this virus and employers should be consistently reviewing federal and state websites for the release of updates.
Just in time for the start of the school year, the U.S. Department of Labor’s Wage and Hour Division (WHD) added to its long list of frequently asked questions (FAQs) for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) related to the reopening of schools.
This guidance explains eligibility for paid leave relative to the varied formats and schedules schools have announced as they plan to reopen, including hybrid models melding in-person with distance learning. The DOL addressed three different scenarios.
Channeling my inner Steve Martin for those old enough to remember that 1979 classic, The Jerk (trust me, parts of it didn’t age well), or when phone books were actually a thing, I am happy to announce that the US Department of Labor has issued new certification and designation forms to be used when employees request or need leaves of absence under the Family and Medical Leave Act (“FMLA”). The new forms are touted as being clearer and easier to complete and interpret. At first blush, that does appear to be the case. These are standard forms for employers who are required to comply with the FMLA and are not designed to address requests for Emergency Paid Family Leave for COVID-19 qualifying reasons.
It is noteworthy that employers are not required to use these specific forms and can use the prior versions or their own self-created versions. The forms and a useful Q and A can be found at:
The Equal Employment Opportunity Commission (EEOC) announced on August 3, 2020 that it will start issuing charge closure documents again on a routine basis. As I wrote in an earlier blog post, the EEOC delayed the issuance of “Notice of Right to Sue” letters at the start of the COVID-19 pandemic to workers who had filed discrimination charges. That suspension is now being lifted. “Recognizing that further delays in issuing charge closure documents could negatively impact both parties’ ability to protect and exercise their rights effectively, the EEOC is resuming its issuance of these documents,” the notice advised.
The EEOC oversees federal anti-discrimination laws. Workers claiming discrimination under federal law must file with the EEOC or dual file with a state agency a charge of discrimination within the applicable 300 days or 180 days deadline. Thereafter, if workers want to move their agency case to federal or state court before the agency process is completed, the workers may specifically request that a “Notice of Right to Sue” letter be issued.
As the EEOC explained, “EEOC managers and supervisors have started reviewing charge resolution recommendations and the EEOC will begin issuing Notices of Right to Sue (Notices) both for charges that were held in suspense, as well as for charge resolution that occur on and after Monday, August 3, 2020. ” This charge closure document is required before workers may file their federal discrimination claim in court. Once that letter is received, plaintiffs have 90 days to bring a lawsuit against their employer or former employer for discrimination under federal law.
What does this mean for employers? Employers may soon find the agency cases that had been “on hold” since March 21, 2020 moved to the court system. This increase in employment litigation filings alleging federal discrimination is expected in the coming months. As the EEOC advised, the “Notices held in suspense will be issued over the course of the next six to eight weeks beginning with those that have been in suspense the longest.”
With COVID-19 at the top of mind in terms of policies and procedures to follow for both employers and employees today, it is important to remember that other employment laws remain in place. Whether employees are working in the workplace or remotely, federal and state anti-discrimination laws govern what is acceptable and appropriate conduct. Companies are encouraged not only to remind employees of the company’s anti-discrimination policies, but also to train employees and supervisors on those policies and to enforce them.
This school year is going to be different – very different. Due to the ongoing coronavirus pandemic, school districts in the region are still developing their plans which include elements of both remote learning and some in-person learning with restrictions regarding mask-wearing, hygiene, and social distancing. With parents making up about one-third of the workforce nationally, employers and employees are facing a lot of new challenges as students prepare to resume school.
On Saturday, August 8, 2020, President Trump took executive actions, sidestepping Congress, to extend certain federal pandemic economic relief. The executive actions were issued after Congressional negotiations over additional pandemic economic relief appeared to have collapsed.
One of these executive actions would address additional unemployment relief by establishing a new lost wages assistance program that would provide a $400 weekly payment to eligible claimants beginning with weeks of unemployment ending August 1, 2020. Individuals would be eligible for these $400 payments if they receive at least $100 per week in any of the following types of benefits: unemployment compensation, Pandemic Emergency Unemployment Compensation, Pandemic Unemployment Assistance, Extended Benefits, Short-Time Compensation, Trade Adjustment Allowance, or Self-Employment Assistance. The $400 would be comprised of a $300 federal contribution, diverted by FEMA from the Disaster Relief Fund, and a required $100 State match, proposed to come from the Coronavirus Relief Fund (CRF) for States. Some States say they do not know whether they can participate because of their own State budget shortfalls caused by the emergency and because use of the CRF would divert funds from necessary COVID-19 testing programs.
Companies reopening their offices and facilities will be collecting sensitive personal and health information about their employees (as well as about customers, vendors, and other visitors) to track COVID-19 symptoms. Although the Americans with Disabilities Act (ADA) typically places strict limits on the collection, use, and disclosure of health information about employees, the ongoing pandemic has prompted the Equal Employment Opportunity Commission and Centers for Disease Control and Prevention to permit the widespread gathering of health information in the workplace in an effort to stem the spread of the coronavirus.
According to the Society for Human Resources (“SHRM”), child care shortages and concerns are complicating a return to the workplace for many parents as the coronavirus continues to spread and options remain unclear for schools, camps and day cares. There are no easy solutions on the horizon for these parents or the companies that employ them. Parents of younger children in particular are more stressed and are being torn in different directions. Single parents, predominantly women, are even more severely impacted. Continue Reading The Daycare Dilemma: Employers and Employees Alike Challenged with Summer Camp Closures and the Uncertainty of the Next School Year
While employers may require testing for COVID-19 before employees return to work, the Equal Employment Opportunity Commission (EEOC) has confirmed that employers are prohibited from requiring antibody testing before allowing employees back into the workplace.
The Americans With Disabilities Act (ADA) allows employers to inquire into an employee’s disability and conduct mandatory medical tests of employees if “job related and consistent with business necessity.” The EEOC earlier confirmed that employers could choose to conduct COVID-19 testing of employees before permitting them to enter the workplace to determine if any of them have the coronavirus. In doing so, the EEOC explained that the test for coronavirus meets this ADA standard because an employee with COVID-19 would pose a direct threat to the health of others in the workplace. Similarly, employers may take the temperatures of employees before entering the workplace and exclude employees with COVID-19 or with symptoms associated with COVID-19 from entering the workplace due to the direct threat to the health or safety of others.
In its new A.7 guidance issued on June 17, the EEOC explained that antibody testing is different and does not meet the ADA’s “job related and consistent with business necessity” standard for medical tests or inquiries into information from employees. Relying on the Interim Guidelines from the Center for Disease Control (CDC), the EEOC adopted the CDC’s position that antibody “testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established.” Specifically, the CDC notes that antibody testing should not be used to:
- make decisions about returning persons to the workplace; or
- make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.
In its new guidance, the EEOC explained that it will continue to monitor the recommendations of the CDC and update its guidance accordingly. At this time, requiring antibody testing of employees before allowing them to return to the workplace is not allowed under the ADA. Until it is found that antibody testing is more accurate, understood, and could prevent the spread of the coronavirus, this guidance is likely to remain unchanged. Employers may, however, continue to test for COVID-19 and inquire into medical symptoms associated with COVID-19. As the EEOC has advised, those employers who do require this testing should ensure that the tests used for detecting COVID-19 are accurate and reliable and administered consistently.