The Centers for Disease Control and Prevention (CDC) recently updated the definition of “Close Contact.” Among other things, the new definition effects the close contact and monitoring process recommended by the CDC.

The term “Close Contact” is now defined as:

Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24 hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

See CDC Appendix to Contact Tracing protocols, among others. This new definition applies directly to “Close Contact Evaluation and Monitoring Priorities.” This recommendation concerns the evaluation and monitoring of individuals who have had close contact with people with confirmed and probable COVID-19 infection.

The CDC provides a “Close Contact Evaluation and Monitoring Hierarchy.” Those who should be evaluated and monitored carefully are those who come in close contact with: for example: 1) hospitalized patients and members of a large household living in close quarters; 2) individuals 65 years of age or older; 3) individuals with COVID symptoms, and 4) individuals without apparent symptoms.

This new definition applies not only to so-called “contact tracing,” but also when to recommendations as to when one should quarantine.

The Centers for Disease Control and Prevention (CDC) have recently issued guidance for Thanksgiving celebrations in light of the continuing risks associated with COVID-19 exposure. The CDC recommends that: “Staying home is the best way to protect yourself and others.” The CDC believes that having a small dinner with just household members is the safest bet. Or, if necessary, having a “virtual dinner” with family and friends.

These suggestions are designated “low risk activities” by the CDC. A “moderate risk” activity is defined, among other things, as “[h]aving a small outdoor dinner with family and friends who live in your community.” If you decide to do the latter, the CDC recommends that the placing of the table and chairs follows social distancing guidelines, i.e., be six feet away from those people from other families. When guests arrive, “do not shake hands, do elbow bumps, or give hugs,”  the CDC emphatically suggests. Moreover, masks should be worn if there is a likelihood that people will be less than six feet apart.

In such holiday gatherings, hands should be washed for at least 20 seconds when entering or exiting the site of the gathering. The sanitizer used should be made available in restrooms. It should contain at least 60% alcohol. Also, such washing of the hands should be done before serving any food.

The Department of Labor (DOL) has proposed a rule that seeks to make it easier to classify workers as independent contractors.  The distinction is not without difference, as the federal Fair Labor Standards Act (FLSA) and many of its state analogues only protect employees, but do not extend to independent contractors – including many gig economy workers.  However, as made clear by the proposed rule, merely identifying a worker as an “independent contractor” does not mean the employer is off the hook.

Continue Reading Better Classification for our Economic Reality

As of Monday, September 21, the Massachusetts Department of Labor Standards (DLS) is offering free review of and advice on companies COVID-19 safety protocols where a cluster, i.e., two or more, of employees has come down with the illness. DLS does so remotely via telephone and email. The DLS will review all existing COVID safety protocols implemented by a company and make suggestions on how to optimize same, among other things.

The contact number to request such services is: 508-616-0461, ext. 9488.

This is a great opportunity for companies to ensure that their COVID safety standards are efficacious and meet state and federal requirements for a safe workplace during this unprecedented pandemic.

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.

Continue Reading To Come to Massachusetts or Not to Come? That is the Question.

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
  • Libraries
  • 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.

Continue Reading USDOL Issues Updated Guidance for Which Parents (and Employers) Have Been Waiting

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:

https://www.dol.gov/agencies/whd/fmla/forms

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.

Continue Reading How Can Employers Support Working Parents This School Year?