COVID-19 FAQs for Employers, Current as of 10/15/20

With the panicky confusion of March and April behind us, many businesses are settling into a new kind of normal. For many who initially furloughed workers, this means calling people back to work and getting back to business. For that reason, I get a lot of calls from people asking about their responsibilities toward their employees and the best practices for meeting those obligations. Here are some of those questions.

One: “How are businesses going back to work?”

The best place to start is with the written COVID 19 Preparedness Plan. The Minnesota Department of Labor and Industry has published a template which provides an excellent starting place, although they should be tailored to your individual business and employees. The plans address hygiene, masks and social distancing, ventilation, and the need to quarantine after exposure to a known case. For public-facing industries, additional protocols should be adopted that address how employees will interact with customers.

Again, you can find the template at www.dli.min.gov and click on the tab for COVID-19 resources.

In addition, many employers are adapting travel policies that require employees to quarantine after voluntarily engaging in out-of-state travel. These policies are recommended to be put in writing so employees can make personal decisions, knowing the consequences in advance. Written policies also help ensure that the employer will apply their policies objectively and consistently among all employees, thereby avoiding the appearance of discrimination or retaliation.

The second question I get is, “Do I have to pay my workers hazard pay?”

This is an issue being addressed in many states right now. Minnesota has seen a call for employers to restore hazard pay, especially for frontline workers, hospitals, grocery stores, and the like. Unions like United Food and Commercial Workers Union have been particularly vocal. To date, the response is coming voluntarily from individual employers. For example, Kowalski’s Market and a few local co-ops are guaranteeing hazard pay for their employees, at least temporarily.

Currently there is no state law requiring employers to provide COVID-19 hazard pay.

The third question I get is, “Do I need to update my employee handbook with social distancing guidelines and quarantine expectations?”

Technically, no. You don’t have to update your handbook per se. However, to ensure clarity and to manage employee expectations, it is important that whatever policies you adopt be in writing and posted. This could mean a COVID 19 addendum to your handbook, or it could mean a standalone policy like the aforementioned Preparedness Plan. Best practices would include having employees sign a receipt that they received the policy and had any questions answered.

The fourth question is, “How do I handle employee absences due to distance learning?”

As a general policy in all things related to COVID-19, employers are encouraged to be generous and lenient. If you are an employer with less than 500 employees and you have an employee who has been with you for at least 30 days who cannot work or telework because of minor children’s school or daycare is closed as a result of COVID-19, you will be required to provide up to 12 weeks of time off under the Emergency Family Leave Act, 10 of which are paid weeks.

The other two weeks could wind up being paid under another leave policy or benefit. The time off can be used intermittently if you, as the employer, agree. The rate of pay is two thirds the employee’s normal rate of pay, not to exceed $200 per day. Employers can claim an exemption and not pay emergency family leave if they have less than 50 employees and meet at least one of these three criteria.

The first is that the leave request would result in expenses and financial obligations that exceed revenues and would cause the business to cease operating in a minimal capacity. Or the employee’s absence would put the financial health or operational capabilities of the business at significant risk. This would be most likely to occur because an employee’s specialized skill, knowledge of the business or responsibilities. Or the third criteria that there are an insufficient number of workers able, willing, and qualified to perform the necessary labor or services needed for the business to operate at a minimal capacity. If an employer wants to rely on an exemption, it should fully document its basis for invoking the exemption in case as an employee, I’m sorry, in case an employee should challenge the decision, but exemptions should be pursued on a very rare and limited basis.

The fifth question is, “Can I, the employer be sued if someone contracts COVID-19 at my place of business?”

The United States Senate has introduced the Safe to Work Act, which would limit lawsuits based on contracting COVID in the workplace to those cases where the employer engaged in gross negligence or willful misconduct. Similarly, the Minnesota Legislature has a pending bill that would establish that so long as a business owner isn’t being intentionally or recklessly exposing anyone to COVID, they owe no duty to persons on its business premises and owes no duty to warn of the risks of COVID-19.

The state bill, which would be retroactive to March 13th, 2020, also removes liability from the business owners so long as it complied with recommended policies and procedures like the Preparedness Plan I mentioned earlier. If the employer isn’t liable, employees would still have a remedy through workers’ compensation insurance. If an employer is found liable, it’s still unclear what the penalty would be. It’s likely it would come to the Department of Labor and Industries’ power to issue citations, civil penalties, and closure orders. But that is yet to be seen.

Finally, “Who can I turn to with questions related to COVID-19?”

While you can, of course, consult an employment law attorney like myself, you can also get a great deal of good information from the Minnesota Department of Health and the Minnesota Department of Labor and Industry websites, as well as the CDC. You can also subscribe to Governor Walz’s newsletters, which come out nearly daily with updates and announcements. Finally, a caveat that this information is current as of the date of recording. Like many things with COVID-19, it is in a constant state of flux with new information and new government and legislative responses to that information still coming on a fairly regular basis. It is important for business owners to stay abreast of this rapidly changing landscape.