The slide deck from today's presentation is available as a PDF in the course tab on the webinar registration page. We're also recording starting now so that you may watch or rewatch on demand at your convenience. And with that, I will turn it over to Maggie and Parker. Thank you, Liz. Hi, I'm Maggie Spell. I'm a partner in the Labor and Employment Practice Group at Jones Walker in New Orleans. And I'm really sorry. My dog has been quiet for hours, except he has now decided it's time to bark. Bear with me. We're going to do the best we can through this. Parker, do you have anything you want to say before we get started? I'm going to close my door. Yeah. My name is Parker Kilgore. I'm a partner as well at Jones Walker. I am in the commercial litigation group here, but I also do a number of labor and employment issues. I'm kind of in both groups, foot in both doors. And we're looking forward to participating today in the webinar. As in most webinars, it's always beneficial for us to have questions. So as Liz mentioned, a way to ask your questions and we look forward to answering those to the best of our abilities. So we wanted to talk today with you guys, now that things are starting to reopen, whether you were fully shut down or whether you had just scaled back your operations. With new people returning to the workplace, folks are facing challenges coming out of that COVID-19 shutdown. So I know a lot of people have the question of kind of, now what? So we're going to run through kind of the big picture items. And look, this is a lot of material. We're going to move pretty quickly. We know you guys have lots to do. So we're going to fly through as much of this as we possibly can. But do, if you have questions, let us know. If they're super, super specific, maybe wait until the end. Parker and I can hang out and answer questions for anybody who has like really specific ones. But things that you think would help other people, feel free. So the main topics that we're going to cover today, or what I'm referring to, is kind of the welcome back to-do list. The general workplace safety issues, we are going to cover very briefly. And there's a reason for that. It's not because it's not important. It's because it's the material that seems to be everywhere. I think we've all been inundated with what types of PPE to provide. Don't forget to put out hand wipes. Don't forget to remind your employees to wash your hands. Those kinds of things. So we want to focus on the next steps. That's going to include things like medical testing. What you can ask employees. What you can ask employees to submit after they've been out of work. What happens when an employee says, I don't want to come back to work. What about when somebody asks for an accommodation or some sort of modification to how they do their job. And then, of course, the big one, what to do when an employee tests positive for COVID-19. We'll cover best practices for that. And then there's also a lot of interaction between what's going on in the COVID-19, I can't even say post-COVID-19 world, but the COVID-19 world as we reopen the workplace, there's some interaction with traditional employment issues, as well as some potential litigation claims and then the defenses to those that we'll talk about today. So with that, let's get started. So OSHA, which is the Occupational, I'm not even going to try. It's too many words right now. OSHA requires employers to provide a workplace that's free from recognized hazards that are causing or likely to cause death or serious physical harm. So that's a pretty broad general standard that OSHA requires. And it's really what's underlying everything that both OSHA and the CDC are recommending with respect to reopening the workplace and keeping your employees safe. Both entities have lots and lots of guidance on their websites about how to reopen, how to keep people safe in the workplace. The CDC also has some industry and workplace specific guidance. It all changes pretty regularly just to really confuse things even more. So it's important to monitor that guidance and or to work with your counsel to stay up to date rather than just say, printing a copy of something, throwing it in a desk drawer and then referring back to that particular document. By the time you look back at it, it may be stale. So keep that in mind as you're going through this process. I would also add to that individual health departments with your respective states are likely to have other guidance and other things that you need to take into consideration or review as well. We will deal on a national level and look primarily to OSHA guidance, CDC guidance, EEOC guidance. But just know that every state's a little different. And because you're members of the national organization, we assume that everyone are often in different locations. And the guidance that California issues is definitely different than the guidance that Illinois or Louisiana would issue. So just be aware of that and know that in addition to CDC and OSHA, oftentimes there may be some state guidance piece that also comes into play. Yep. Nope. Thanks, Parker. That's a really great point. And dovetailing off of that is that even the reopening directives and orders are going to vary greatly from state to state, from locality to locality. For example, in Louisiana, I don't know why this is the example that came to mind, but gyms were allowed to reopen in Louisiana. There wasn't, other than like the capacity restriction, there wasn't any other restriction. In New Orleans in particular, we can't have group fitness classes for whatever reason. So just make sure that you're really staying up to date on what's out there, both at a federal, state, and local level, because they're all going to be different. And then, of course, as we move through each phase of reopening, each one's going to bring different challenges as more people get into the workplace, more customers and visitors return to your space. It's just important to make sure that you're constantly monitoring things, evaluating things, and being as flexible as you can be. And to that end, to the extent that you have the ability and the resources, we'd recommend having someone or a team in charge of handling these things. Monitoring the guidelines, managing the communications to employees so that they're uniform and everybody's getting the same message. The same people can then field questions, and if there's any PR, they can handle that. And we'll come back to this at the very end, but they should also be the ones keeping track of the safety measures that are taken by the business. That's going to be a really big deal, I think, going forward in litigation. So make sure somebody is tasked with those responsibilities rather than just being on kind of a reactive basis. I know before the shutdown, we were all just reacting kind of hour by hour, basically, to what was going on. We have time right now to be proactive as we start to open our doors and bring more people back in. So just, Parker, did you have something? Oh, no, I was going to just kind of, and this is something we'll address later, too, like Maggie mentioned. We're already beginning to see the first round of COVID-19-related lawsuits. And so a lot of the advice that you'll hear today is, frankly, from a risk mitigation standpoint. What can you do to mitigate your risk? Relying on, this goes back to the guidance measures, relying on those guidance measures helps to mitigate risk. But it really is, and I wanted to emphasize something that Maggie said, which is, to the extent you have documented what you've done to protect your workers or your customers and what safety measures you've put in place, that could potentially be very beneficial further down the line. Yes. And the types of things that Parker's talking about are exactly what's up on the screen right now. So if you, for example, are making physical modifications to the workplace to be able to bring people back to work, that may be things like increasing space between workstations or putting in touchless soap dispensers, for example. If you're limiting occupancy, if you're shutting down certain kitchens or conference rooms, those are the things you need to be keeping a list of, because two years from now, in the event you're in litigation, you're not going to remember every single thing that you did. And a lot of people are doing a lot of things to try to keep their employees safe. So make sure you're documenting it. If you increase your routine cleaning, for example, keep track of when the cleaners are coming, when it's a full disinfectant, you know, like a deep clean, versus when it's a routine cleaning. Keep track of all of that, your hand washing protocols. And then other things you may want to keep in mind as you're bringing people back is, do you need to stagger the shifts? Do you need to bring people in at different times? If you have a lot of employees who take, for example, public transportation, you may want to stagger their work shifts and bring them in a little later so they avoid exposure to everybody who's on public transportation. And then I know for some of you with, you know, if you're dealing in a dealership situation, then you may have visitors and third parties, and you need to be considering what restraints you're going to put on visitors or customers actually coming into your workplace. And then Parker will talk in a second about testing and questions and things you can ask and think about, I mean, obviously you're not going to test all your visitors, but think about what you're going to do if you're going to make them sign anything and answer any questions before they physically enter the workplace. And before we move on, what I will say is, this is from, again, from a litigation standpoint, as you're trying to document these things, pictures are worth a thousand words. And so if you do make physical modifications to a workspace, document that. Oftentimes what we see now is there'll be tape on the ground that says, look, one person stands here, the other person stands here. Take pictures of those things. And what we found is it's beneficial to have those pictures to show what you've done, but it's also beneficial, you know, people that are coming into your space may have questions about whether or not they're safe in your space. And so if you have pictures and you can put on the website, look, we're taking reasonable accommodations to keep both the employees, which is what we're here to talk about, but also the customers that come into the space safe as well. So the next topic is medical testing and inquiries. So as a start, you are allowed to test your employees if there's a medical necessity and a valid business reason to do so. In the context of COVID, what that has generally become and has become acceptable is taking temperature tests. So the tests have to be job-related and consistent with business necessity, but the EEOC has acknowledged that there's community spread of this. And the easiest way to prevent community spread is to try to identify individuals who are potentially carriers of the virus as soon as possible and isolate those individuals. And so that's where temperature tests come. Now, the testing and inquiry can be other than the temperature test. We've had clients who've asked us, can we do active testing for virus or can we do antibody testing? I think we'll all hear a lot more about the number of tests that take place as larger, for example, sports organizations open up. As the NBA comes up or as the NLB comes up and they begin to reopen, they're talking about taking 30,000 tests. Well, that's a unique circumstance. The advice that we've given clients is taking temperature tests is something that, for lack of a better word, the EEOC is blessed. And if you do so, that doesn't get you, for lack of a better word, taking a temperature test doesn't get you in trouble if you take the other necessary precautions. That's the case during COVID. Typically, taking a temperature would be problematic, but right now, you've got the go-ahead. Right, exactly. And the other go-ahead that we have is you can ask general questions about symptoms associated with COVID-19. And so, you can say, have you had a cough? Have you been short of breath? Have you had a fever within the past 24, 48, 72 hours? What a lot of employers have done is they do a two-fold test where there is a survey on the front end and then a temperature test that goes along with the survey. So, that's something that a lot of people have rolled out. Again, from a protecting the company from both a liability standpoint, from both employment practices and from other exposures, having a documented survey that somebody fills out that says, no, I have not had a fever, I have not had any of these symptoms, that you can go back and refer to, that's a wonderful thing. Again, it's tangible for lack of a better word, evidence that you're doing your best to keep everybody safe. And so, Maggie, if you'll flip to the next slide. Can I just comment on the antibody testing? I stuck that in there on you. So, we've had people asking, can I test for antibodies and then give people, like applicants, preference if they have the antibodies? I mean, to me, practically speaking, I don't see what good this does you. We don't know enough about the antibody test to know how long the antibodies last, if that means they can even not get the virus again. So, before that's something you're investing in, I think you need to really give some thought to what that actually reveals and how it'll be used. And then, part of the reason you're able to do the other types of testing, like temperatures or testing for COVID-19, is because the EEOC has said bringing that into the workplace, it goes under the direct threat analysis, which we'll talk about a little bit more in a bit, where there's a direct threat to other people in the workplace if somebody comes in who is potentially, or who has tested positive. Antibodies aren't, that doesn't factor into the direct threat analysis. You don't have that going, so it's probably an impermissible medical exam. Whether that will remain the case, we'll see down the road. Yeah, and the other thing to add to that, too, is that the CDC at this stage has said that the antibody test is inherently, the recent guidance from the CDC is that there are issues with the antibody test, and so that goes into, as Maggie said, is it reliable? What are you really gleaning from that? If you're requiring somebody to take a test that's not necessarily reliable, then is that overreach? The difference with temperature testing is it's easy, it's not invasive, and it's very easy to determine if somebody has a fever or not, and that has been linked inclusively to people who have active virus, and so that's part of the reason the CDC has explained that to the EEOC, and the EEOC says, yes, that's something that you can do. Now, when we go back to the issues of the survey, we take a survey every morning if we're coming into the office, and a lot of employers do that, and what that survey says generally is, have you had a fever? Do you have any symptoms? Have you been exposed to anyone that has the virus? Have you been exposed to anyone that's waiting on a test? Have you been exposed to, and it looks at it in that context. One thing that you want to be very careful of is asking the questions in a mechanism that doesn't implicate asking familial questions, so asking, have you been exposed to anyone that has the virus, is better than, is there anyone in your family that has the virus? Is there anyone in your household that has the virus? What you don't want to do is, as Gina prohibits employers from requesting about genetic information, and so treating it in the context of, in a global context as opposed to a specific family or household makes a difference. With respect to applicants, what you can ask and do varies at what point in the process you are, right? If somebody's an applicant, or if they've been given an offer, or whether they're an employee. At the pre-offer stage, when somebody is just an applicant, you can't do anything, basically. You just got to wait for it. If they're not yet an applicant, like if somebody's coming to take a tour of your facility and they haven't applied yet, you can do whatever you're doing for other visitors to the workspace, but don't start temperature testing or asking applicants to take tests. That's what, now you kind of beat me to the point on that, which is, if you're doing something, you can leave that one up, Maggie. If you're doing something to everybody, so if you're requiring everybody that walks into your office space to take the survey and fill it out, and then to have their temperature taken, those are reasonable things that you can require. Frankly, we do that. If we have visitors coming to our office space, we require that they fill out a survey and require they have their temperature taken. If you're doing that to everybody that walks in the door, then you can do it to the applicants as they come in to drop off an application, or if it's part of the process. Treat them like a regular visitor. Those are things you can do to regular visitors, but you can't make special considerations for applicants. Again, the overarching thing, and what you'll hear us say this a lot, is treat everybody similarly. That goes to the next slide, which is up right now, which is, what do you do once you've made a conditional offer of employment? As making a conditional offer of employment, you can take a temperature as part of a screening that comes after a conditional offer of employment. Again, do that for all the applicants. Now, if the applicant has a fever, the employer can delay the start date based on the screening, if the applicant themselves does. The CDC, I'm sorry, the EOC has said, if you have somebody come in, you take their temperature, they have an elevated temperature, and you've made them a conditional offer of employment, then you can delay their start date for that. Same with respect to someone who's got a conditional offer of employment and has symptoms. The withdrawal of a job offer may be a potential option if they have symptoms, if that job is specific and needs to take place immediately. For example, you have a specific job that you need someone in the next seven days to go clean out and reorganize a warehouse because you have a new shipment coming in. You're receiving a new inventory. Well, if you screen somebody and you make them a conditional offer of employment, and they then have a temperature, and the goal would be to delay the start date for 14 days, that will not meet your hiring criteria. The withdrawal of a job offer in that case may be a potential option. One thing that has popped up and is in the guidance is if someone that you're hiring is someone who has a higher risk from COVID-19. Generally, these people are people that have what the doctors call a comorbidity, so potentially someone who is older or has other health issues. If you have made that person a conditional job offer and you have decided that you don't want that person, you cannot decide that you don't want that person to start on your start date unilaterally. You cannot unilaterally propose a start date or withdraw a job offer just because someone is high risk. What we suggest in those situations is you discuss other work arrangements. We've all dealt probably over the past three months with other work arrangements, whether it's telework, voluntary postponement of a starting date, or other possible accommodations that Maggie will probably touch on here in a little bit. Those are how you have to handle someone who is otherwise healthy but just is high risk. Again, you don't want to create an issue there by taking an action for them that you would not take for somebody that's not high risk. No, I think that's exactly right, Parker. Otherwise, you're going to end up with a charge or a lawsuit alleging, to use your example, age discrimination. You can't just refuse to hire back all of the older workers, even if your whole thought process is, I'm concerned for their health because they have a higher risk if they contract COVID-19. I mean, these are adults and these employees have the final say as to whether they can come to work or not. I was reading something earlier today that, and we're going to get into accommodations in a minute, but reasonable accommodation charges, which Parker just hit on, are already being filed in the COVID-19 context. I just wanted to raise the point that you may be giving them a legal claim if you're refusing to recall or to hire disabled workers, for example, out of concern for their health. Or if you're only hiring back childless workers, that may be a caregiver bias lawsuit. There are a lot of road bumps here and mines for employers. I mean, you need to be going back to what Parker said earlier, making sure everybody is being treated the same way. Oh, and we have a little more before we get to accommodations, but we'll get to that in a minute. One thing that's important, and you see this a lot in both media reporting and others, which is we have access to a lot more data on the health conditions of the employees than we ever have. And so it's something to be, and we'll address this a little bit later in the what do you do if somebody tests positive world, but you have to continue to maintain the confidentiality of your employees' medical information. So the ADA requires that all the medical information be stored separately from the employee's personnel file. We don't have to treat COVID-19 medical information separately. You don't have to treat from the employee's other medical information. But those are things that just to be aware of, because there are situations all the time where, and this is a perfect example, so you're taking temperatures. If you have someone who's taking temperatures at the door, and every time somebody walks in, they take a temperature, and that person taking the temperature loudly announces to everybody around what that person's temperature is, that's a problem. And when somebody has a fever and they say, oh, you're 101 today, if that person says it loudly, then anybody standing around knows that that person had a fever. So you have to look at those confidentiality issues, and it is a brave new world when it comes to what medical information employers have on a daily basis with their employees. And do make sure your managers know to keep the individual's name confidential. It can't be a, oh, well, he normally works right next to you, but I'm not allowed to say his name either. It needs to be, look, a coworker tested positive for COVID-19, I'm not allowed to reveal their identity, but we just wanted to let you know. And Parker will talk about that in a little more detail later. Yeah, and that ties into what we said a second ago, right? So if somebody comes in and they do have a fever and they get sent home, well, then the people they were potentially exposed to is much smaller than if they got in the door and developed symptoms and came down sick two or three days later. So that's why we do the testing on the front end, but that doesn't resolve, that doesn't absolve an employer from trying to even keep that basic temperature information as confidential as possible. Okay, so I'm going to try to speed things up a little bit. What do you do when people start telling you, I don't want to come back to work? It's going to happen if it isn't already happening. So if you've got people with high risk factors, like their age or their health condition, we talked a little bit about age. I mean, you can't refuse to bring somebody back because they're older. If they're just refusing to come back because they're older, I don't think that's permissible either. You need to then explore some accommodations for them. And the same thing with a pregnant employee. If they're concerned about coming back to the workplace, explore accommodations with them. And then we kind of get farther and farther away from what we can tolerate, right? If they're living with high risk family members or have childcare issues, you need to check to see if they're entitled to any paid leave under the paid leave laws. And I'll give you a refresher on the Families First Coronavirus Response Act, because that still exists through the end of the year. Nobody forget that. That provides some paid leave for folks with high risk family members or childcare issues. But what about just an employee? And I feel like this is what I'm seeing more than anything at this point is, I'm just afraid to come back to work. What do we do with those folks? So generally speaking, you need to actually evaluate their concerns. Don't jump to a conclusion, especially don't start saying, you know, oh, they're just crazy. We don't like using words like that in the workplace. You need to determine if their concerns are reasonable or unreasonable. If there's no disability that you're aware of, and don't go asking them if they have a disability. But if they don't have a disability, and they're just saying I'm scared, you can insist that they report to work. And if they don't, you can enforce your attendance policy. But what if the person has an underlying disability? That's why they're afraid. So if somebody says, I'm afraid to come to work, because I have an autoimmune disease that makes me susceptible to catching the virus and makes the consequences worse if I do, that's a different thing. And you need to go through the interactive process and figure out with them how you can accommodate them to do their job. What if the employee has a severe anxiety disorder? That may be enough to require a reasonable accommodation under these circumstances. For that type of situation, you're going to follow your normal interactive process. So we're going to go into that now. If somebody comes to a manager, HR, anybody, and says, hey, I need a change, X, Y, and Z, to my job because of a medical condition. This can just be in conversation, this can be on writing, whatever the case may be. If they don't reference the medical condition and it's just an expression of a preference, you can follow up and ask them for clarification on what they need and why, but you don't need to just dive in and start asking them a bunch of medical questions. If they still don't raise anything about a medical condition, you don't have to treat it as a request for an accommodation. Remember that they don't need to use the words reasonable accommodation to request it. It's just essentially, I need a change to my job, to my workspace, to my hours, whatever the case may be because of this medical condition, and that triggers your obligation to engage in that interactive process with them. You're going to need to conduct an individualized assessment. Figure out what you need to look at what their job is. You need to look at how if they ask for a specific accommodation, for example, you can talk with them about how do you think this is going to assist you and enable you to keep working. You can also ask and explore alternative accommodations. You don't necessarily have to give the employee the accommodation that they specifically request, if there's another accommodation that will work and allow them to do their job. My favorite way to start this conversation though, is somebody comes to you and says, I need a new chair because I have a bad back from a surgery that I had five years ago. Help. You just need to ask, how can I help you? Start the conversation and start the dialogue. It's the safest way for you to stay out of trouble by asking the wrong thing and to get the information that you need. If you do need medical documentation to support the disability or to figure out more about what they need or what's going to make them able to do their job, you can ask for that. I'd recommend working with your counsel to do that. We prepare letters all the time that go to the employee and send them a list of questions that they bring to their doctor, so we can gather more information and make that determination about whether there's a reasonable accommodation that will allow them to do their job. So generally speaking, we're going to need to make those accommodations because of disability or pregnancy unless they impose an undue hardship. Look, we don't want to get to undue hardship. If we get to undue hardship, we're fighting an uphill battle. Cost, you never, ever, ever want to say it just costs too much because they're going to dig through all of your records to see what you've spent your money on that makes this software that this person who can't type because of carpal tunnel, how much that software cost and where else you spent that money. You are digging yourself a hole. Now, if you previously could have afforded something or you previously could have provided an accommodation, but in this pandemic world, you can't. That may create an undue hardship. Because it wasn't previously an undue hardship doesn't mean it's not now. For example, if you're working with less of your workforce and somebody needs X amount of time off or something, it may create an undue hardship that puts an extra burden on too many, or puts too much on the other employees in the workplace. Don't forget that's available. But to the extent possible, nobody wants to litigate an undue hardship case because it's really hard to win. They dig into all sorts of stuff that you likely don't want them to do. Correct. Let's see. Okay. Because I'm getting a lot of these too. We want to be friendly to employees. We want to keep people happy. We know things are hard out there right now. If you're giving an accommodation to somebody where you're not legally obligated, meaning they don't have a disability, they're not pregnant, they don't fall into any category where you have to accommodate them, put it in writing, make sure you note that this is temporary and that it's due to the pandemic, and that you can change it in the future when we're no longer living in this world one day down the road. Just make sure that that's documented. The classic example of that is there are a lot of businesses right now that are allowing employees to work from home where in any other circumstance, that employee would not be allowed to work. Document it on the front end and explain why that is not a, essentially it's a limited and temporary accommodation because you don't want to set the precedent that someone has an accommodation has the ability to go work from home in a certain job. Even for those who you do have to accommodate, if you're letting them work from home, I still think you want to make clear that this is a temporary accommodation as long as they need it under the circumstances, but that we will be revisiting this because if there are job duties, for example, essential functions of their job that they can't do from home that may require them one day to come back to the workplace. We just need to be really careful with the language around those. Everybody is doing their best to be sensitive to the higher risk category of employees, and I know to some extent we're getting mixed messages from the EEOC on this, but if you do have people who are higher risk, but who need to come back to work, just give some thought to whether you can make physical modifications or policy modifications that allow them to do the job. Transfer them to another position, for example, temporarily or put up barriers or just, we're all getting very creative with how to put up barriers between different employees. Remember that modified protective gear may be something that you need to provide as an accommodation, whether it's if you've got an employee who communicates by reading lips, and you need to make sure that other employees with whom that employee communicates has modified face masks, just as an example. So look, if you know that somebody has a condition that puts them at higher risk and you are concerned about their health, if they don't ask for an accommodation, you don't have to do anything. I know I've said this time and time again, but I'm going to say it one more time, you can't exclude the employee or take adverse action against them, solely because they have a disability that may put them at higher risk of severe illness. I feel like I've been having to say that a lot because people are being really kind and sensitive, but you can't make that decision for them. If they pose a direct threat, and that's an even higher burden than that undue hardship I talked about a minute ago. If they pose a direct threat to either their own health or the health of other people that can't be eliminated or reduced by an accommodation, you may be able to keep those employees out of the workplace. That's going to be a really, really high burden. I'm going to run through just as a super quick refresher. Families First Coronavirus Response Act was passed back in, I want to say April, it feels like four years ago. It requires certain employers to provide employees with paid sick leave or expanded family medical leave for specified reasons. This is only going to apply to employers with fewer than 500 employees or some public employers. Then what employees are eligible differs based on whether you're talking about the paid sick leave which is just for two weeks or the paid family leave, which can provide up to an additional 10 weeks. This handy dandy little infographic here that I stole from the Department of Labor shows you what the issue is and then how much time they get off and at how much pay. You can find that everywhere at this point, but this is like if somebody is told they have to stay home because they have COVID and they're seeking a medical diagnosis, they may be eligible for up to two weeks or 80 hours of paid sick leave at their regular rate of pay. If somebody is having to stay home to take care of kids because schools and camps and everything are closed, they may be entitled to two weeks of paid sick leave at two-thirds of their regular rate. And then those are the people, and those are the only people who get that additional 10 weeks of paid family leave. Those people have to have been employed for at least 30 days. The two weeks of paid sick leave is just like day you start working. And none of this means that any regular FMLA is now paid. The paid portions are only what we just talked about. And there's what I'm calling no double dipping. You can't say, hey, I need to take two weeks off because I have COVID. And then, hey, I need to take two weeks off because my kid has COVID. You get a total of 80 hours for full-time employees or an average for part-time employees. And then if somebody's already exhausted their FMLA prior to this, they don't get that additional 10 weeks of emergency paid family leave. So if, say, you had an employee who was out for back surgery and they were already out for three months, but now they need to take care of their kid, they're out of luck as it pertains to FMLA, both the paid leave and just the regular job-protected leave. I mean, you may have policies in place that allow for additional leave, but you're not required to give it to them under these laws. And what I was going to say, too, is one thing that's popped up is, and we've seen it a little bit, is where you have an employee who needs some portion of like partial FMLA, expanded FMLA to deal with child care issues. Where you have, you know, they're available X number of days, but then they don't have capacity other days. Those partial accommodations, employers are not obligated to give partial accommodations. They have the protection, the employees have the protections of FMLA, protections provided by the Families First Act. But you do need to have a dialogue about it. And to the extent that there is a partial accommodation, or I say accommodation. To the extent. Intermittent leave. Intermittent leave, yes. To the extent you're talking about intermittent leave, employers are not obligated to give intermittent leave. But the best practice is to discuss it. See if it's a possibility. See if it works. And, but if it doesn't, then you can just tell the employees, you need to go ahead and take FMLA. And look, if you have people who are taking this leave, make sure you're documenting it. I'm not going to run through everything that's on this slide. But just make sure you're tracking what's going on and getting those statements from employees. About the leave. And that's particularly important if you're also operating under the Paycheck Protection Program. And you'll have to show, you know, that you paid out in this. Let's see. All right, Parker, you're up. So the, a lot of questions we get now are, what do we do? We just had somebody test positive. And, and so the first thing is, when someone tests positive, you have to focus on the individual. And determine, gather information and determine where they have been. And what is the potential exposure? Who have they talked to? Those kind of things. So, you know, the first step we advise clients is to sit down with the employee to the extent it's possible and say, all right, so when did you start feeling bad? And ask those questions so that you, with the point of tracking that person inside your doors. And then the next step is to, tracking that person inside your doors to determine who they were, had close physical contact with. Again, as Maggie said in the beginning, once a manager, if a manager's aware that somebody tests positive, the manager needs to maintain the confidentiality of the infected employee. It's, it's, frankly, it's, it is going to get out. Because when you go to clean somebody's workstation, they will see you cleaning that workstation. But at the same time. You can try to do that after hours. Yeah, you can do that after hours. There are a bunch of other things you can do. But you should strive to maintain the confidentiality because you don't want to get in trouble for having somebody say, you know, just like the example Maggie used earlier, you know, I can't tell you you tested positive, but they work in this building and they won't be at work tomorrow, but the other three will be. And we see some of that, but do your best to control those situations. I mean, this is, this is a notice as simple as essentially someone with whom you may have come in contact with in the workplace has tested positive for COVID-19, please monitor for symptoms, et cetera, et cetera. And if you come down with any symptoms, I mean, people need to be just encouraged to stay home if they're sick and potentially have COVID-19. And that goes to the notify the coworkers, which are what is, what do you do with a coworker who was in close proximity to somebody that did test positive? And it depends, frankly, on that person's, the essentialness of that person's job. There are, the CDC has guidelines for essential businesses that go to what do you do in this situation? And then, and they'd say, look, you know, continue to wear masks, continue to practice social distancing. There's asking an employee to quarantine or self-isolate if you know that person has been exposed. Those are all potential options and way to address that. Again, in these situations, it's very important to know what the latest guidance is from both the CDC, but also from your local, local and state health departments. Because every local and state health department is issuing different guidance on what your locale thinks is the proper way to handle the exposure. And if your local health department says everybody is required to self-quarantine for 14 days, then there are things that are built into the Family First Cares Act and other programs to allow people to do that. Guys, I really hate it when I find a typo in a PowerPoint. I'm going to just say Parker typed this page. Please forgive me. Uh-oh. It's okay. We'll, we'll forgive you. So again, cleaning is very important. You have to have a cleaning, you have to implement cleaning, do the best practices. You know, is it, do you do the whole office or can you isolate the work area? A lot of that depends on the specific individual. And a lot of that depends on what information you get when you interview the employee who tested positive. On the next slide, you have an obligation to notify the other contractors and others who visit the location. I say an obligation, what you want to do is if that employee had close physical contact with someone, then in, just as Maggie said earlier, what you do is you say, look, you were in close physical contact with somebody that has presumptively tested positive for COVID-19. And just please be aware of that. That's also why it's important to have the kind of the surveys and the tracking information that we did on the phone, that we discussed on the phone. And then you basically need to consult with the CDC guidance and then implement a return to work policy based on that CDC guidance. One thing that I know a lot of people deal with are staffing agencies. A staffing agency who places someone in your facility, the staffing agency has the ability to tell you if one of their workers tested positive and has the ability to tell you who it is. That's an essential thing that has been blessed. The staffing agency will call you and say, Jane Doe tested positive for COVID-19, so that you can do the contact tracing within your workplace to determine who else has, who else you should monitor, take extra safety precautions with, or potentially ask to self-isolate or quarantine. All right, so there has been a lot of discussion over return to work. So if somebody has tested positive for COVID-19 and they have been sick and they are, they have recovered and they are essentially asymptomatic and they want to return to work, then what do you do? Well, one of the classic things is a doctor's note, a medical certification from a doctor. A doctor's note is kind of the first line of defense against FMLA abuse or ADA abuse. In this context, in the COVID-19 context, doctors, employers have been encouraged to consider, you know, things that are not the classic doctors. So whether it's a telemedicine consult, other things like that, you are allowed to require a medical certification, but at the same time, you know, asking an employee to go to an office to get a medical certification can create additional issues. And so that's just something to be aware of. The whole thing is let's not overburden the medical system, you know, the healthcare system any more than they're already. No, exactly, exactly. They're busy. They're very busy. And frankly, you know, doctors may not want people in their offices and your employees may not want to go to those offices. So to the extent there's an alternative, that may be something you want to do. But again, as the last bullet point of this slide says, you need to apply the policy uniformly. So you have to, what you do for one, you need to do for all. So the CDC has issued other guidance in the absence of a medical certification, what the return to work is. And so, and it varies based on whether or not someone has the ability to get a COVID-19 test. Classically, we've heard that people are considered to be virus-free if they have two negative tests, 24 hours in a row. Well, in situations, they're frankly, there are situations where COVID-19 tests are unavailable to document whether or not somebody is virus-free after having symptoms or after having already test positive. So the current guidance, and again, every locale could be potentially different, but the current CDC guidance says in the non-testing policy, if you have somebody return to work, they need to have no fever for 72 hours without the use of fever-reducing medicine. All their, or their other symptoms must have improved. And they must have had at least seven days passed since their first symptoms occurred. The 72 hours without use of fever-reducing medicine is important. As the father of a young child who wants that kid to go to school, you can give a kid medicine that may have a little bit of a fever and ship them off to school. But the, and they say, well, have you had a fever? It's a no, but if they're taking, it doesn't count. So you need to, you need, the question is no fever for 72 hours without the use of fever-reducing medicine. When you're using a test-based strategy to return to work, the same, the first two requirements are still the same, but the difference is, the difference is that that testing requirement that says two negative tests in a row, 24 hours of work. All right. So now we're into kind of the intersection of COVID-19 and the traditional employment issues. And I know we only have a few minutes left, so I'm going to go as fast as, make sure you're not retaliating against anybody who's either expressing concerns about workplace safety or asking for any sort of accommodation. This is, you know, don't fire them. Don't give them a bad job that they don't like. Don't only give them the bad duties or whatever the case may be. Don't forget that if a group of employees comes and expresses concerns about the safety of the workplace, or if one employee is speaking on behalf of a group that might be protected activity under the National Labor Relations Act, you don't have to be a unionized workforce and have unionized employees for the NLRA to apply. This particular provision can apply this protected concerted activity. So just keep that in mind. And then there's also the potential for an OSHA whistleblower cause of action where an employee refuses a task that's protected. But the standard for that is pretty high. It's pretty limited. I'm not going to read you everything. But essentially, they have to have refused it in good faith, and they must genuinely believe that there is imminent dangers and a reasonable person has to agree with them. And it basically has to happen. Something has to happen now or because of the urgency of the hazard. So just a thought. But I don't I don't know how often that's really going to come up. Wage an hour with your exempt employees, meaning those employees who are paid on a salary basis and don't get overtime. You need to take a holistic look at what they're doing. Jobs are changing how we're doing. Jobs is changing based on the physical workspace changes and whether people are teleworking. You need to monitor what they're actually doing to evaluate whether they're still exempt employees. If, for example, you have a manager of a store who usually has 10 employees working under him, but now only has two. I can bet you he's doing a good bit of non-exempt work to keep operations moving during the pandemic. So you need to make sure that if they're doing job duties that are outside of their normal job descriptions, evaluate whether they're still exempt. You may need to move them to a non-exempt category and pay them overtime temporarily. And you can keep them on a salary basis if you want to. You just still have to pay them that premium pay if they're not currently exempt. And I know some people have made pay cuts throughout the pandemic rather than layoff, if you're doing that instead of a layoff. Make sure that they're still meeting that minimum compensation level, which currently federally is $684 a week. But you may have state or local law that's higher and the highest is going to apply. Be cognizant of deductions. You've got to pay the full salary for any work week in which they perform work. And then make sure that, you know, if you're in a location that has specific notice provisions, and some do about changes, make sure you're following those, check with your counsel on that. Non-exempt employees. I could spend an entire day on this. We're not going to. If an employee is doing something that is integral and indispensable to the work that they're going to perform, that's going to be compensable time. You need to start looking at whether there are congestion points in getting to work. Like if you're taking temperatures, if they have to wait for 30 minutes, you need to start thinking about and working with your counsel on whether that's going to be compensable time that starts the clock for them for the beginning of the day. Meal and rest periods may be different. If you have a workspace where now people can only walk in one direction, it may take people several more minutes to get to lunch. There are just a lot of practical things that we're thinking about for non-exempt employees to make sure that we're paying them everything that they need to be paid, especially because in the wage and hour world, it lends itself really easily to collective and class actions where one person can sue on behalf of everybody. So those are just some very quick thoughts there. Harassment, pandemic related harassment is definitely going to be a thing. If we've got more vulnerable populations based on, say, race, we need to make sure that those people aren't being treated differently, that there's not some sort of fear that's being misdirected at them because of race, for example, or national origin. It's a good time to just remind everybody that harassment is both against the law and against, hopefully, your policies and that that won't be tolerated and that you'll take appropriate action. Trade secrets. If you've had employees working at home, for example, and those are people who have access to trade secrets or confidential information, if they're still working from home, monitor how they're treating that information. Make sure it's not just laying around on the kitchen table and their spouse who may be a competitor or it doesn't even have to be that drastic. But if it's public information, then it may not qualify as trade secret anymore. So you need to make sure they're keeping that information confidential. The number one thing, the number one way to waive a trade secret is to not treat it as confidential. Exactly. Thank you. If that pops up and we see that all the time where, oh, it's trade secret. Yeah, but you told your buddy that that's what the recipe is. So it's not a trade secret. That's exactly right. You may want to also consider having those employees when they come back to work, certification saying, hey, I took all the physical documents that I had brought home with me that have confidential trade secret information. I've brought all that back to the office. I've removed everything from the home device, you know, the home devices like the iPad my kid uses or whatever the case may be. Just make sure that's all really, really buttoned up. Or as Parker said, you may really want to make sure you may risk waiving that trade secret protection. Potential litigation issues. We've said them throughout. So I'm just going to throw a couple out there. The leave issues are going to be a huge issue. As I said earlier, reasonable accommodation charges related to COVID are already being filed. We're going to see age discrimination. We're going to see caregiver bias. We're going to see failure to provide the paid leave under the Families First Coronavirus Response Act. We're going to see, you know, situations where people are trying to say they were infected at work. I still think that's going to be hard to show, but it's going to happen. Those those claims are going to be those claims are already being filed. And then there's probably also going to potentially be some negligence claims for failing to follow all those guidelines. So one of the ways you'll be defending this, if you were to get sued for something that involves somebody being, say, infected in the workplace, you're going to need to be able to show that they didn't, you know, that the likelihood was they didn't contract it in the workplace. And there's not a sufficient nexus between the infection and something that you'd. So the stronger that you're adhering to those health and safety requirements and guidelines that we breezed past earlier, but that are all over the CDC website and OSHA and basically anywhere on the Internet, the the closer you're complying with that, the better off you're going to be. And that's why we've been saying, you know, document, document, document. Make sure you are keeping track of everything you are doing to keep people safe. Take photographs. You know, if you're putting up signs on the wall to remind people, don't enter the kitchen if there are already three people in there or whatever it is, and we just take pictures of all of that. It's not going to take you long to do. And it's going to be great evidence in the event that you do get sued down the road. I know everybody's acting quickly and making decisions and trying to keep everybody safe. But take a minute, because, you know, if you end up in litigation in two years, that real time evidence of those actions taken is going to be it's going to be huge versus, you know, the plaintiff's bar, who's going to get real creative with different types of causes of action in addition to kind of the classic ones that we've already talked about. Who knows what we'll end up with? So with that questions. All right, thank you, Maggie and Parker. I don't think we've had any questions come through. So for everyone that is on the call or anyone that might look at it later, if you do have any questions, the contact information for both Maggie and Parker is right there. So please feel free to reach out to them. Guys, thank you so much for your time this afternoon and for the presentation. And stay safe. And yeah, just thank you again. We appreciate it. Thank you all. Thanks, guys.

business challenges

employee return

COVID-19 pandemic

workplace safety

medical testing

high-risk employees

litigation issues

CDC guidelines

Families First Coronavirus Response Act

trade secrets