The regulatory environment is continually changing in response to the COVID-19 pandemic and we’re working on keeping you as informed as possible. There may be potential discrepancies as COVID-19 regulatory changes continue to occur. If you believe there may be a discrepancy affecting you or your business, you should contact your local government and/or competent local legal counsel for further advice.
U.S. Centers for Disease Control & Prevention Updates
- CDC Updates Guides and FAQ for Traveling, Staffing, and Quarantine
- CDC Vaccination & Workplace Vaccination Guidance
- CDC Guidance for Fully Vaccinated People
- CDC Releases Interim Guidance for Immunocompromised Adults and Health Care Workers
- Quarantine Time Periods Updated for Individuals Who Have Been Fully Vaccinated
- CDC Recommends Wearing Face Coverings
- Updated Guidance on COVID-19 Workplace Testing
- Essential Worker Toolkit for Employers
- CDC Updates Guidance for Businesses and Employers
- Clarified Guidance for Critical Infrastructure Workers
- CDC Defines Close Contact
- 14-Day Quarantine Dropped and Guidance Updated on When to Interact with Others After COVID-19
- COVID-19-Related Workplace Violence Prevention Guidance Released
- COVID-19 Communication Plan for Critical Infrastructure Employers Released
- CDC Releases One-Stop Shop Toolkit
- Workplace Testing Strategy Released
- CDC Releases Reopening Criteria for Workplaces
- CDC Releases Reopening Decision Trees for Industries
- CDC Releases Guidance on Reopening Your Workplace
- CDC Relaxes Return to Work Standards Following COVID-19 Exposure
- CDC Issues Guidance to Curb the Spread of COVID-19 from Large Gatherings
U.S. Department of Homeland Security Updates
- With Employment Authorization Document Delays, Employees May Use Form I-797
- U.S. Citizenship and Immigration Services Temporarily Suspends Premium Processing for I-129 and I-140 Forms
- UPDATED 5/28/21: Department of Homeland Security Temporarily Relaxes I-9 Review Requirements
- Travel Restrictions Due to Coronavirus
U.S. Department of Labor (DOL) Updates
- Essential Workers, Essential Protections from Wage and Hour Division
- UPDATED 1/8/21: Federal Unemployment Program Guidance
- FFCRA Court Ruling Update
- New Q&A for Parents Navigating Paid Sick Leave as Schools Reopen
- PSA Campaign About Workers’ Rights, Safe Workplaces, and Lawful Pay
- Additional Testing Guidance Released for Health Plans Under FFCRA and CARES Act
- Employee Online Tool Helps Determine Eligibility for COVID-19 Paid Sick Leave
- New Guidance on Fluctuating Workweek Overtime Rules
- DOL and IRS Extend COBRA Payment Periods
- DOL Releases USERRA Guidance For COVID-19
- DOL Specifies Which Individuals Are Covered by Pandemic Unemployment Assistance
- Department of Labor Releases Guidance on COVID-19 Related FLSA and FMLA
- Additional Guidance from the Department of Labor on Unemployment Eligibility
U.S. Department of Transportation (DOT) Updates
- Pre-Employment Substance Abuse Tests Temporarily Waived for CMV Light Drivers
- Navigating I-9 Form, E-Verify, and Expired/Extended Driver’s Licenses During COVID-19
- DOT Releases Guidance on Drug and Alcohol Testing During Pandemic
- UPDATED 6/7/21: COVID-19 Vaccine Guidance
- Employers Can’t Require Antibody Tests to Return to Work
- New Guidance Cautions Against Age Discrimination As Businesses Return to Work
- Employers May Require COVID-19 Tests
- EEOC Delays 2019 EEO-1 Component 1 Data Collection to 2021
- EEOC Clarifies Impact of Coronavirus on American Disabilities Act and the Rehabilitation Act
Internal Revenue Service (IRS) Updates
- FFCRA Leave Must Be Reported on W-2 Forms
- NEW: IRS Extends Payment Period for Some Employee Payroll Taxes
- IRS Allows Midyear Enrollment and Changes to Health Plans and FSAs
- CARES Act Retirement Plan Relief
- IRS Explains Employer Tax Credits for Employee FFCRA Paid Leave
- 2020 Tax Deadlines Extended from April 15 to July 15
- High-Deductible Insurance Plans to Cover Costs of COVID-19 Testing and Treatment Before Patients Reach Deductible
U.S. Occupational Safety and Health Administration (OSHA) Updates
- UPDATE 6/1/21: COVID-19 Recordkeeping: OSHA Updates Enforcement Guidance and Recordkeeping Requirements
- NEW: OSHA Endorses Latest CDC Mask Mandate
- President Biden Issues Executive Order and OSHA Releases New Guidance to Protect Worker Health and Safety
- Holiday Workplace Safety Website Launched
- Most Common COVID-19 OSHA Citations
- Guidance on Ventilation at Work
- Temporary Standard Released for Air Purifying Respirators
- Posters and Guidance for Automotive Service Workers, Janitorial Services, and Restaurant Dine-In Service
- Guidance on Face Coverings and Heat Illness Prevention
- OSHA Urges Employees to Wear Face Coverings
- Return to Work Guidance Released
- Face Coverings FAQs
- Industry-Specific Reopening Guidance Released
- N95 Mask Standards Relaxed During Shortage
- OSHA Poster for Reducing Exposure to Coronavirus in the Workplace
- COVID-19 Reporting: OSHA Specifies When Employers Must Report Presence of COVID-19
- ASTM International Publiches Nonregulatory Stnadards for Face Masks
- Executive Order for New Unemployment Benefits
- NEW: Executive Order to Protect the Federal Workforce, Requiring Masks
- What Employers Need to Know About President Biden’s Natinal Plan to Combat COVID-19
- President Trump Signs Executive Orders Regarding Unemployment and Payroll Taxes; Department of Labor and IRS Respond
- Travel to U.S. Prohibited, Visas Suspended
- Federal Government Releases Guidelines for Reopening for Business
- President Trump Issues Declaration of National Emergency for COVID-19
As vaccination programs have rolled out throughout the United States, the CDC has issued several guidelines and considerations for the public and for employers.
The Workplace Vaccination Program has been updated several times to include information about vaccine mandates and exemptions for medical and religious reasons.
On March 25, 2021, the page was updated to include guidance for large employers offering on-site vaccinations. The considerations for an employer to implement an on-site workplace vaccination program include:
- Having a large number of employees with a regular schedule
- Having the ability to enroll your program as a vaccine provider, train your staff, or use an enrolled vaccination provider
- Location space that allows everyone to be socially distant from screening to post-vaccination observation.
Additional guidance for workplaces considering an on-site vaccination program:
- Coordinate a planning process with leadership from across the organization, including labor representatives
- Contact the health department in their area
- Use a vaccination provider or vendor from the local community
- Offer vaccinations at no charge and during work hours
- Consider staggering vaccination times to avoid work shortages related to vaccine side effects
- Determine how to respond to or plan for a vaccine shortage
Off-site vaccination programs are best for:
- Small and medium-sized employers that don’t have resources to host a vaccination clinic
- Employers with a workforce that is mobile and frequently moving job sites
- Employers with a workforce that have constantly changing schedules
- Employers with a workforce that prefer a community clinic to a workplace vaccination program
The CDC has updated the FAQs on COVID-19 Vaccinations webpage several times to include several common questions about the COVID-19 vaccines for the public.
The Interim Considerations for Phased Implementation of COVID-19 Vaccination and Sub-Prioritization Among Recommended Populations outlined recommendations on how states should prioritize vaccines for the public, specifically calling for individuals with disabilities or in cognitive decline to receive priority. Additionally, the resource provides considerations for the accessibility of vaccination locations, communicating vaccine information, and appointment scheduling.
What Should You Do?
If you’re a large employer considering a workplace vaccination program:
- Consult with your legal counsel on the implications of such a program for your business
- Ensure that your screening process and vaccination program is compliant with the Americans with Disabilities Act, any state or federal discrimination laws, and workers’ compensation laws
- Ensure that all medical information is kept private and confidential
Updated 4/27/21: CDC Guidance for Fully Vaccinated People
Update 4/27/21: The CDC revised and updated guidelines for fully vaccinated people. Fully vaccination people may do the following:
- Be with other fully vaccinated people indoors without wearing masks or adhering to social distance rules
- Be with unvaccinated people who are from one single household and pose a low-risk of COVID-19 infection, without wearing a mask or adhering to social distance rules
- Go without a mask in outdoor settings, unless in a venue setting or crowded area
- Travel domestically and not have to self-isolate or take a COVID-19 test before or after traveling
- Take international travel and not have to take a COVID-19 test beforehand or self-isolate after coming back to the U.S.
- They do not need to take a COVID-19 test, routine test, or self-isolate after a known exposure, provided they are asymptomatic
To help everyone determine when to wear a mask or what to do in a certain setting, the CDC published an infogram of Safer Activities.
Businesses should continue to adhere to the strictest regulations in place from the federal, state, or local jurisdictions, in order to remain compliant. Businesses should assess their current policies and procedures and work with legal counsel regarding any changes they make.
On March 8, 2021, the CDC published guidance for people who are fully vaccinated against COVID-19. The new information still advises vaccinated individuals to continue taking precautions in public with avoiding crowds, social distancing, and mask-wearing, but they may also begin to:
- Visit other fully vaccinated people without wearing a mask or maintaining social distance
- Visit indoors with unvaccinated people from one household, without wearing a mask or maintaining social distance, provided the other household is at low risk for COVID-19
- No longer quarantine and get tested if they don’t show signs of COVID-19 after coming into contact with someone who has the virus.
As of April 2, 2021, fully vaccinated people may also resume domestic travel without getting tested or quarantining after traveling. Additionally, fully vaccinated people don’t need to get tested or self-quarantine before leaving the United States unless it’s required by the place of destination. A negative test is necessary before boarding a flight back to the United States, and travelers should still get tested 3-5 days after international travel.
Complete vaccination begins two weeks after receiving the last required dose of the vaccine.
Update 3/18/21: Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces was updated on March 17, 2021. The new information is geared for testing asymptomatic individuals in certain work scenarios as part of a workplace COVID-19 prevention and control plan.
The following online guidance has been published by the CDC:
Interim Guidance on Duration of Isolation and Precautions for Adults with COVID-19. On February 13, 2021, the federal agency updated information about COVID-19 reinfections from variants, as well as precautions, isolation duration, and information on reinfection of SARS-CoV-2 variant viruses for people with compromised immune systems:
- Reinfection with a COVID-19 variant appears to be infrequent within 90 days of the initial onset of the initial infection. Anyone being evaluated for reinfection should isolate or quarantine before and during the evaluation, following previous CDC guidance, until they meet the criteria to end the isolation.
- It’s recommended that immunocompromised patients take diagnostic tests for COVID-19 to discontinue isolation and precautions.
- Severely immunocompromised patients may continue to produce the COVID-19 virus beyond the 10 to 20 days and require additional testing and medical consultations.
The Return to Work Criteria for Healthcare Personnel with SARS-CoV-2 Infection (Interim Guidance). This interim guidance released on February 16, 2021, outlines recommendations for healthcare personnel who are severely immunocompromised, and who could still be infectious following 20 days after COVID-19 symptoms first appear. The CDC recommends consulting with infectious disease specialists and using a test-based strategy to determine when the individual can return to work.
The Interim Guidance on Testing Healthcare Personnel for SARS-CoV-2. Updated on February 16, 2021, the new advisement is for asymptomatic healthcare personnel or people that have recovered from COVID-19. They may not need to quarantine or receive repeat testing if they were exposed to the virus within 3 months of their original diagnosis.
Interim Guidance on Testing Healthcare Personnel for SARS-CoV-2 (February 16, 2021)
On January 21, 2021, the CDC released guidance on SARS-CoV-2 workplace testing that emphasizes the importance of obtaining employees’ informed consent and providing disclosures of the workplace testing program. This new guidance aligns with the EEOC.
In this updated guidance, the CDC encourages employers to provide employees with easy-to-understand information about the testing program, what happens in the case of a positive test result, or if an employee declines to take a test.
The following questions should be considered when developing a COVID-19 workplace testing program:
- Why are you offering the test?
- How often should employees be tested?
- How will you obtain consent?
- What will you do if an employee declines to be tested?
Additionally, consider the following measures:
- Employee privacy and confidentiality
- Easy-to-understand and complete information about the testing program’s impact on the employee
- Explaining key reasons that will help employees make their decision to participate
- Using the employee’s preferred language, without technical language
- Encouraging everyone to avoid any social pressure to participate
- Encourage questions and discussion during the consent process
- If you have a COVID-19 workplace testing program, review your current policies and procedures as it relates to this new guidance.
- If you haven’t implemented a COVID-19 workplace testing program, consider the new guidance as you reevaluate whether to develop one.
On January 29, 2021, the CDC released a communications toolkit for employers of essential workers to help them educate their workers about COVID-19 vaccinations. The toolkit includes:
- COVID-19 vaccine key messages and fact sheets
- Frequently asked questions about COVID-19 vaccines
- Newsletter content
- Letters to employees
- Vaccination stickers
- Posters and flyers
- Social media messages
UPDATED 1/4/21: CDC Updates Guidance for Businesses and Employers
On January 4, 2021, the CDC updated its guidance for Businesses and Employers Responding to the Coronavirus Disease webpage.
The updates include more information on what to consider regarding testing, shorter quarantine times, masks and face coverings, and in-person virtual health checks.
On November 16, 2020, the CDC released new guidance for critical infrastructure employers. The updated recommendations permit workers who have been exposed to COVID-19 but are asymptomatic and haven’t tested positive for COVID-19, to return to work before the standard 14-day quarantine post-exposure.
This exemption from the 14-day quarantine is permitted if the employee is asymptomatic and the employer has incorporated precautions including symptom self-screenings, screening employees before each shift, monitoring for symptoms, face covering requirements, social distancing requirements, routine workplace cleanings and disinfection.
Other important aspects of this clarification include:
- It is only to be used as “a last resort and only in limited circumstances”
- Only employers that are impacted by or take part in “public health and safety” should use the new recommendations
- Continue to use the safety procedures that limit the spread of COVID-19 and reduce the chances of an outbreak.
- If you are considered a critical infrastructure employer, review your guidance and workforce to identify job roles that are critical to remain onsite after a direct exposure to COVID-19.
- Consult your legal counsel on whether your business falls within the “public health and safety” category in the new guidance.
The federal agency has updated the following information that may be useful for businesses:
- Update 4/22/21: On April 19, 2021, the CDC announced that Americans shouldn’t travel outside the United States to 80% of countries. The State Department will begin using CDC standards as it develops travel health and safety guidelines for individual countries.
- Update 12/4/20: CDC changes quarantine options based on local health authorities and resources. Although the 14-day quarantine time period is still recommended, the CDC released new guidance to allow for “local circumstances and resources.” A quarantine can end after day 10 if the person reports no symptoms after daily monitoring. A quarantine can end after day 7 if diagnostic testing is available, and the tests come back negative and the person experienced no symptoms during daily monitoring.
- Returning to Work. The CDC outlines several considerations for employees returning to work including self-evaluation questions and how to stay safe on-site.
- COVID-19 Travel Recommendations by Destination. A global map provides risk level by country, what to do after traveling to the destination, and any additional steps that travelers should take. Update 11/28/20: CDC updated international travel guidance instructing individuals to get tested for COVID-19 three to five days after their return and to stay home for seven days. See After You Travel Internationally, Travel: Frequently Asked Questions and Answers, and Testing and International Air Travel.
- CDC Staffing Resources. Where across the U.S. the CDC has deployed – field staff and quarantine stations.
- A flowchart for the management of HCWs with exposure to a person with COVID-19 has been updated.
- How COVID-19 Spreads. This provides updated information on how the virus spreads, and how to protect yourself.
- Frequently Asked Questions. The FAQs have been updated and include everything from the basics of the virus to how to prepare for an outbreak, symptoms, contact tracing, cleaning and disinfecting, community response, and more.
- Additional Tool and Resources Page. This CDC webpage includes tools for non-U.S. healthcare settings.
The federal agency released new guidance to clarify what “close contact” means. If a person comes within 6 feet of an infected person for cumulative total of 15 minutes or more, over a 24-hour period. That means that if interactions were only a few minutes at a time but add up to at least 15 minutes over 24 hours, that person is at risk for infection.
Update 2/17/21: As the population continues to receive vaccinations, the CDC has updated its isolation and quarantine guidance for those that have been fully vaccinated
If someone has been exposed to another person who has a suspected or confirmed case of COVID-19, he or she does not need to quarantine if he or she meets all of the following requirements:
- It has been 2 weeks since he or she received the second dose of a two-dose vaccine series or one dose of a one-dose series vaccine.
- He or she is within 3 months following the receipt of the last dose in a vaccine series.
- He or she continue to be asymptomatic from the most recent exposure to COVID-19.
Employers should continue to follow previous quarantine guidance for those vaccinated employees who don’t meet the above 3 criteria. The 14-day quarantine is still recommended but it is acceptable to end the quarantine after 7 days with a negative COVID-19 test or 10 days without a test, as long as these individuals are monitored for symptoms for 14 days after exposure.
Fully vaccinated workers should continue to adhere to the basic precautions including hand washing, mask wearing, and social distancing.
What Should You Do?
- Review and update your quarantine policies and procedures in relation to vaccinated workers.
- Seek legal counsel on determining how to track employee vaccination status and quarantine requirements, being mindful of confidentiality. Remember that asking if an employee is vaccinated isn’t considered a medical exam under the Americans with Disabilities Act, but any information on why they aren’t vaccinated can quickly become a violation.
14-Day Quarantine Dropped and Guidance Updated on When To Interact with Others After Having COVID-19
If you think you’ve had COVID-19 or were diagnosed with it, the CDC recently updated its guidance about when you can end at home isolation and begin to interact with others.
Additionally, for individuals returning from international and interstate travel, the CDC dropped its 14-day quarantine recommendation and now asks these individuals to follow state and local guidance and to maintain social distancing requirements from others, wear a face covering, wash hands or use hand sanitizers with at least 60% alcohol, and to monitor for COVID-19 symptoms.
The CDC released violence prevention strategies and information for customer-based businesses, like retail or services, to use with their visitors. In addition to rounding up several resources for employers, the agency included a one-pager for employees on hot to mitigate workplace violence.
Update 10/23/2020: The CDC updated the Investigating and Responding to COVID-19 cases in Non-healthcare Work Settings webpage.
The “COVID-19 Communication Plan for Select Non-healthcare Critical Infrastructure Employers” was released in early August to outline key messages and prepared materials that businesses may want to disseminate to their employees.
Among the key recommendations is for businesses to use multiple communication channels to reach their employees, whether through letters, small group meetings, social media, or onsite televisions.
Businesses should review the toolkit and determine what messaging and resources may be useful in their COVID-19 communications plans.
In mid-July, the CDC released a “COVID-19 One-Stop Shop Toolkit” of COVID-19-related videos, social media, PSAs, print resources, checklists, FAQs, and web resources for organizations to use to help them communicate with their target audiences.
Some of the audiences include:
- Young Adults, Ages 15-21
- Child Care Programs and Summer Camps
- Youth Sports
- K-12 Schools
- Businesses and Workplaces
- Community and Faith-based Organizations
- General Public
- Domestic Travelers
- Shared and Congregate Housing
- Parks and Recreational Facilities
- Worker Safety and Support
- Colleges and Universities
- Older Adults and People at Higher Risk
- People with Disabilities
The “SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces,” guidance has been released and provides 5 scenarios of when COVID-19 testing is appropriate. These scenarios aren’t meant to replace other federal, state, or local regulations that businesses must comply with. Rather, they are meant to supplement and potentially be incorporated into COVID-19 preparedness, response, and control plans.
Those scenarios include:
- Testing employees with COVID-19-related symptoms;
- Testing employees with a recent, known, or suspected exposure but are asymptomatic;
- Testing employees without a recent known or suspected exposure for early identification in certain settings (e.g., where physical distance can’t be maintained, remote locations where treatment may be delayed, critical infrastructure settings, workplaces that provide housing to employees like offshore oil platforms or fishing boats);
- Testing to determine when an infection is over (e.g., employee may stop isolation); and
- Testing employees for public health reasons.
Update 9/23/20: The CDC issued new guidance for businesses and schools working towards a safe reopening as well as updated it’s Businesses and Workplaces resource page. The guidance is generalized with the idea that businesses should tailor their strategies to meet their business needs. See Additional Resources for additional updated CDC materials.
In a new guidance document, the CDC outlined reopening criteria for workplaces.
Of particular interest to employees is the appendix (starting on page 38) that outlines reopening measures and safety protocols for 5 different workplace settings like child care centers, schools and camps, restaurants and bars, transportation, and businesses with high-risk employees.
All employers are encouraged to enforce sanitation and hygiene practices, ensure ventilation systems are in proper working order, perform daily health checks, provide flexible sick leave, and offer teleworking to employees who travel from areas with high infection rates.
***Note: This document also can be found in Vera Suite*** The COVID 19 CDC Activities and Initiatives Supporting the COVID 19 Response is located in the Policies & Documents > HR Documents > Toolkit – Guides in VeraHR.
The COVID 19 CDC Activities and Initiatives Supporting the COVID 19 Response is located in the Policies & Documents > Compliance Documents > Coronavirus Disease 2019 (COVID-19) in VeraEHS/F&I.
To help guide employers through the decision process for reopening, the CDC released industry-specific guidance for workplaces, transportation, restaurants and bars, child care, schools, and camps/youth programs.
Each decision tree includes a series of questions for employers and organizations to consider before they begin reopening and returning employees to work. Employers must ensure they’re safe to reopen and that they’ve put plans in place to protect all employees, including vulnerable populations. Each decision tree is meant to work in conjunction with state and local orders.
To help businesses navigate reopening their businesses safely, the U.S. Centers for Disease Control and Prevention (CDC) outlined a decision tree to use in accordance with state and local health departments.
The three questions employers should ask based on the decision tree are:
- Should you consider opening?
- Are recommended safety actions in place?
- Is ongoing monitoring in place?
Each question has several considerations for employers to review as they plan their reopening. The big takeaway is that reopening your business won’t be a small task, and keeping your employees and workplace safe is an ongoing process even after you reopen.
- Develop an infectious disease or pandemic preparedness plan and how your business will implement the plan and continue to monitor it.
- Check out some of KPA’s other guidance for planning your business’s reopening here.
Who: Employers with workers who have been exposed to or contracted COVID-19
When: Effective Immediately
What: Critical infrastructure workers can continue working after being exposed to COVID-19 provided they are symptom-free and the employer takes steps to keep the employee and community safe. The previous recommendation stated the employees should be sent home for up to 14 days after a confirmed or suspected case of COVID-19.
Additional precautions that employers can take with a returning employee is to monitor the employee’s health for any symptoms or to take the individual’s temperature and to disinfect and clean areas like offices, bathrooms, equipment, etc.
- If your business is considered a critical infrastructure by your state, local, or the federal government, review and update your procedures for employees with confirmed or suspected cases of COVID-19 back to work.
- Review your procedures with your legal counsel to ensure their compliance with all regulations and requirements.
UPDATED2/17/21: CDC Recommends Wearing Face Coverings in Certain Circumstances
Who: All employers and employees
When: Effective -April 3, 2020
Update 2/17/21: Although not a requirement, the CDC issued new COVID-19 prevention guidance to encourage citizens to wear two masks that fit snug to the face.
The advice follows a CDC study published on February 10, 2021, that assessed two ways to improve the fit of masks. The first used a cloth mask over a medical procedure mask. The second way used a medical procedure mask where each ear loop was knotted and the mask material tucked-in at the sides to fit against the face. The study found each approach decreased the wearer’s exposure to the virus and improved control.
What Should You Do? Employers should weigh the benefits and hazards associated with requiring or allowing employees to use two masks. If you decide to make double-masking a requirement, be sure to have a policy that is non-discriminatory and is applicable to all employees.
Update 1/31/21: Starting February 1, 2021, at 11:59 pm, all travelers on public transportation such as airplanes, buses, ships, trains, taxis, ridesharing, public airports, bus terminals, subway stations, and ferry terminals must wear face coverings. The Transportation Security Administration and federal, state, and local agencies will enforce this order. Bandanas, face shields, and scarves are not considered proper face coverings.
Update 12/4/20: The CDC reviewed and updated its public health strategies for addressing COVID-19 transmission. It released a summary of its guidance which includes the universal use of face coverings, social distancing, increasing ventilation, and more.
Update 11/10/20: The CDC updated its previous guidance from April by announcing that cloth face masks can protect the wearer by reducing inhalation of the virus droplets. Seven recent studies found that cloth masks were effective at preventing new infections and work as a “two-way street.” The CDC also updated their cloth face covering webpage, Use Masks to Help Slow the Spread of COVID-19. As an employer, if you haven’t implemented a face covering policy, consider whether face masks are an option that will still allow your employees to perform their job tasks.
Update 8/26/20: Updated guidance was released online about How to Select, Wear, and Clean Your Mask.
Update 8/7/20: The CDC updated its guidance how face coverings can help prevent the spread of COVID-19. See Considerations for Wearing Masks.
In response to the COVID-19 pandemic, the Centers for Disease Control as issued a new recommendation to wear a face covering in settings where social distancing is difficult to maintain, such as grocery stores and public transit. This is especially true in areas where there is a significant rate of community-based transmission.
The face coverings do not protect an employee from getting the disease. The FDA has stated that, “…a face mask, by design, does not filter or block very small particles in the air that may be transmitted by coughs, sneezes, or certain medical procedures.” The masks are to help keep sick and asymptomatic people from potentially spreading the disease through droplets exhaled during talking, sneezing, or coughing when they are in close proximity to others.
Cloth face coverings are a voluntary measure. The CDC continues to stress hand-washing and social distancing measures as the primary means of preventing spread of the disease.
If employers require employees to wear face coverings at work, they could be considered personal protective equipment (PPE). Employers should consider following the applicable PPE regulations, including a hazard analysis. In addition, OSHA requires PPE equipment to “protect the affected employee from the hazards identified in the hazard assessment.”
- Consider the risk category your employees are in.
- If necessary, conduct a hazard analysis of the workplace environment to determine if face coverings should be required. If so, create a plan to provide the required equipment and training to employees.
Around the middle of March, the CDC released guidance to help stop the spread of COVID-19. Part of the recommendations included:
- Eliminating large crowds and gatherings of 50 people or more; and
- Discouraging handshakes or any hand-to-hand contact.
The CDC also provided additional information on whether to postpone or cancel events, what to consider when the pandemic ends, and how to plan for gatherings in the midst of the pandemic.
- As states start to reopen, consider how your business will address gatherings and participation in large-scale events.
When: December 1, 2019 to December 1, 2020
What: With extensive delays impacting the production and issue of Employment Authorization Documents (Form I-766, EAD), USCIS is temporarily allowing the use of Form I-797 Approval Notice for EADs as a Form I-9, Employment Eligibility Verification, List C #7 document.
This temporary allowance is only acceptable when Form I-797 was issued between December 1, 2019, and August 20, 2020. New employees may use Form I-797, along with a List B document to establish their identity. Current employees needing reverification may use Form I-797 as proof of employment authorization under List C.
Starting December 1, 2020, employers must re-verify employees who used Form I-797 as employment verification. Employees who used this form, must present new employment verification that falls under List A or List C.
U.S. Citizenship and Immigration Services Temporarily Suspends Premium Processing for I-129 and I-140 Forms
Who: Employers seeking petitions for employees using I-129 and I-140 petitions
When: March 20, 2020
What: The U.S. Citizenship and Immigration Services (USCIS) has temporarily stopped processing new requests for premium processing Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. USCIS will continue to process previously accepted I-907 Request for Premium Processing forms. It will refund the filing fee ($1,440) if it doesn’t fulfill a premium processing request for a previously filed Form I-129 or Form I-140 within the 15-calendar-day period.
The visa categories affected are all those included in the I-129 and I-140 premium process petitions: E-1, EB-1, EB-2, EB-3, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1 O-2, P-1, P-1S, P-2, P-2S, P-3S, Q-1, R-1, TN-1, and TN-2.
This temporary suspension won’t affect the H-1B cap lottery, and selected registrants should be notified by March 31. However, in the absence of the premium processing, petitioners likely won’t receive petition decisions until late May at the earliest. Companies using the premium processing petition won’t be able to easily communicate with USCIS representatives about their case status or make corrections.
For employees whose status may expire or be impacted by this change, they are eligible for a 240-day extension and shouldn’t be affected by the temporary premium processing suspension.
Review and identify any premium processing petitions and inform the affected workers that the premium processing isn’t currently available.
Who: Employer who are operating remote workforces
When: Effective Immediately until May 19, 2020, or within 3 business days after the national emergency ends
Employers who are operating entirely in a remote program temporarily don’t need to review I-9 forms in-person with new workers. Employers are required to review Section 2 of the I-9 form still, whether through video conference, fax, or email, and they will need to make a note of “COVID-19” in the “additional information” field. They must also have copies of the documents within 3 business days. Employers must provide all new employees with their remote onboarding and telework policy.
When this temporary change has ended, all new employees who were onboarded during this time must report to their employer within 3 business days for the in-person verification and employment eligibility documentation. Employers will need to make a note of the date of the document’s physical examination in Section 2.
This temporary change doesn’t apply to any employees who are on-site at the employer’s location. Meaning, the I-9 review requirement still applies to those employees who are physically present at a work location.
Update 5/28/21: ICE announced it’s extending I-9 flexibility to August 31, 2021, which will also apply to those employees working from home.
Update 3/31/21: ICE announced it’s extending I-9 flexibility to May 31, 2021. The extension also includes guidance for employees hired on or after April 1, 2021 who are working remote because of COVID-19. These employees don’t need to meet the physical requirements of I-9 verification until they return to work on a regular basis or the temporary exemption ends.
Update 2/2/21: ICE announced it’s extending I-9 flexibility to March 31, 2021.
Update 12/23/20: ICE announced it’s extending I-9 flexibility to January 31, 2021.
Update 11/18/20: ICE announced it’s extending I-9 flexibility until December 31, 2020.
Update 10/14/20: Flexibility surrounding I-9 Form compliance has been extended to November 19, 2020.
Update 8/31/20: For any employers who are operating their business remotely, flexibility surrounding I-9 form compliance has been extended to September 19, 2020.
Update 7/18/20: ICE announced the extension of I-9 Form flexibility to August 19, 2020.
- Review your current onboarding practices and adapt them to this temporary change. Ensure that onboarding still includes the review of the I-9 form; physical documents are obtained.
- Communicate with other hiring managers about this change and how to update their current practices.
- Be prepared to communicate with all new employees, to bring their physical documents, when regular operations resume.
Who: All foreign nationals (with limited exceptions), both immigrant and non-immigrant who were physically present in China, Iran, and European countries in the Schengen area as well as the United Kingdom and Ireland during the previous 14 days to enter.
Various travel restrictions from multiple countries into the U.S. has begun:
- March 11, 2020, for Europe
- March 16, 2020, for the United Kingdom and Ireland
Additionally, on March 21, 2020, the U.S. borders to Mexico and Canada except for “essential travel.” This restriction will be in place until April 20, 2020.
What: The United States has issued a ban preventing foreign nationals who have visited high-risk countries from entering the U.S. Foreign nationals who are lawful permanent residents, spouses, parents, or guardians of U.S. citizens or legal permanent residents and U.S. military personnel are exempt from this rule. Other exemptions are also granted for those who have received a government invitation to enter the U.S. for a reason related to the handling of COVID-19.
Essential travel between Canada and Mexico is defined as any U.S. Citizen returning to the states, anyone receiving medical attention or education in the U.S., anyone who is working in the U.S., or providing an emergency response or public health services, anyone engaged in lawful trade, military or government service.
- Ensure all employees are aware of the restrictions and requirements of the ban while it is in effect.
- Assess the impact on any employees currently out of the country on travel and advise them accordingly.
- Draft a policy to address these challenges.
Who: Essential workers in grocery stores, health care, delivery services, retail, agriculture, and other essential industries that have remained on job sites
What: The DOL’s Wage and Hour Division has launched a campaign, Essential Workers, Essential Protections. The online resource webpage includes several resources to make sure essential employees understand their rights and protections when it comes to wages, hours worked, and job-protected leave during the pandemic.
Essential workers are defined as those who work in grocery stores, health care, delivery services, retail, agriculture, and others in essential industries that have remained on job sites in spite of the health risks to themselves and their families.
The campaign includes a schedule of training/webinar opportunities for essential workers and employers to better understand the federal and state laws and rights that protect them. Here is the full schedule for May 2021.
Other resources include:
- Frequently Asked Questions about pay, breaktimes for breastfeeding, and time off.
- A blog post on the DOL’s blog page regarding the Essential Workers, Essential Protections campaign
- WHD Workers’ Rights Webpage has been updated to include easier access to essential protection information.
Updated 1/8/21: Federal Unemployment Program Guidance
At the end of 2020, the Department of Labor issued an advisory, Unemployment Insurance Program Letter No. 9-21, to counsel states about the unemployment insurance component of the Consolidated Appropriations Act, 2021, and to provide instructions on implementing certain unemployment insurance (UI) provisions.
In the summary, the advisory states:
- The Federal Pandemic Unemployment Compensation program resumed on December 26, 2020 and includes a $300 supplement.
- States are required to provide a method for employers to report individuals who refuse to return to work or accept an offer of suitable work and that states notify said individuals who are reported under the relevant state laws.
- Mixed Earners Unemployment Compensation (MEUC) program is available for states that elect to participate.
On January 5, 2021 the Unemployment Insurance Program Letter No. 15-20 Change 3 provided guidance to employers about the Federal Pandemic Unemployment Compensation (FPUC) and Mixed Earner Unemployment Compensation (MEUC):
- From December 27, 2020, to March 14, 2021, FPUC will pay $300 dollars a week for supplemental unemployment benefits.
- Individuals who receive Pandemic Unemployment Assistance aren’t eligible for MEUC benefits.
- States have the option of participating in the new MEUC program that will provide $100 dollars per week of supplemental benefits to individuals who have received $5,000 or more of self-employment income in the last taxable year that ended before the worker applied for regular unemployment compensation.
- MEUC payments can be made through weeks of unemployment on or before March 14, 2021 or on March 13, 2021 for those states that end unemployment on a Saturday.
What Should You Do?
- Review your unemployment benefits program and determine how the new guidance and dates impacts your current policies.
- Work with legal counsel to ensure that any changes align with the new guidance.
- Where necessary, communicate these changes to any outgoing employees.
Who: All businesses that fall within the FFCRA ruling (businesses with less than 500 employees)
When: September 16, 2020 through December 31, 2020
What: The Department of Labor announced how the FFCRA will be implemented following a New York District Court’s ruling from August regarding paid sick leave and expanded medical and family leave. This rule is temporary and effectively on through the end of the year.
Paid Sick and Family and Medical Leaves Available Only When Work is Available
Access to these types of leaves are only available if the worker would normally have had work to do. For example, if a business is closed, the worker can’t use FFCRA leave for any reason.
When You Need Permission for Intermittent Leave
Employees working onsite or teleworking, must get permission from their employer to take intermittent leave. See Question 21 for more information.
Clarifying the Health Care Provider Definition
The definition of a health care provider was refined to include those individuals that fall under the Family Medical Leave Act definition or whose job it is to provide diagnostic, preventive, treatment, or patient care services.
Notice and Documentation Requirements
Notice for emergency paid sick leave (EPSL) may not be required in advance. It can only be required after the first workday or portion of the workday that the employee takes EPSL. Notice for Expanded family and medical leave must be given as soon as practicable.
As soon as its practicable, employees may be required to provide documentation to their employer that supports their need for using FFCRA leave.
See Also: KPA’s How the FFCRA Impacts Employers
For workers that qualify for paid leave under the FFCRA, a new FAQ explains, in question number 22, eligibility for paid leave that relates to the different schedules and formats that schools may be using as they reopen.
The Department of Labor launched a new public service awareness campaign to remind workers about their rights during the COVID-19 pandemic.
The Department’s Wage and Hour Division created several resources in English and Spanish for workers and employers about the new paid sick leave and the family and medical leave benefits under the Families First Coronavirus Response Act.
The Department of Labor, along with the Department of Health and Human Services and the Treasury, released a set of FAQs for group health plan sponsors about implementing COVID-19 testing that fall under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief and Economic Security Act.
The bills require comprehensive private health insurance plans to cover the costs of COVID-19 testing and related services during the public health emergency.
The FAQs clarify the scope of testing requirements, bills, and when testing must be covered.
Be sure to review the FAQs and seek legal counsel as you update and change any COVID-19-related testing policies and procedures in the workplace.
The DOL launched an online tool to help workers figure out if they qualify for paid sick leave or extended FMLA to cover any time away from work resulting from COVID-19.
The tool uses the Families First Coronavirus Response Act’s paid leave provisions to determine if the employer qualifies and which type of leave the worker can use.
Determining Your Eligibility (the online tool)
To help employers navigate the COVID-19 workplace, the DOL has issued a final rule, “Fluctuating Workweek Method of Computing Overtime,” that relaxes the way that overtime is calculated for salaried, nonexempt employees who have fluctuating work schedules.
Employees who are entitled to overtime pay will receive a fixed weekly salary that divides the number of hours the employee actually worked to determine that week’s base hourly rate. The employee then received an additional 0.5 times their base rate for each hour beyond the 40-hour workweek.
Employers can continue to pay bonuses, premium payments, or other types of pay without jeopardizing the workweek method of pay.
Previously, this rule was called “Fixed Salary For Fluctuating Hours” and didn’t include employees who received bonuses or other incentivized pay, and must comply with state overtime laws. Employers should check with their state laws to ensure that they can use the fluctuating workweek. For example, Alaska, California, New Mexico, and Pennsylvania don’t allow the fluctuating workweek.
Who: All employers offering COBRA benefits
When: Effective Immediately
What: Considering the coronavirus, the U.S. Department of Labor and the Internal Revenue Service have extended the deadlines for certain employee benefits, elections, and COBRA-payment periods. With this extension, notices, elections, and pay periods will resume 60 days after the national state of emergency has ended.
Among the extensions include qualifying individuals will have up to 120 days to elect COBRA, following the end of the national state of emergency. COBRA premium payments won’t be due for 90 days after the end of the emergency.
The new model notices (on page 2) and the accompanying FAQs include information about the interaction between COBRA and Medicare. Individuals may opt to enroll in Medicare when their health insurance ends, even if they didn’t enroll during the Medicare enrollment period, there is a special 8-month enrollment period beginning a month after the termination date or the month after the group health plan (through employment) ends.
- Review the COBRA Model Notices and FAQs
- Update your current COBRA procedures based on your current business plans
- Identify any employees that you have already communicated COBRA information and deadlines too and communicate to them about the new changes.
Who: Employers with employees who serve in the National Guard or Reserves
What: The U.S. Department of Labor’s Veterans’ Employment and Training Service released a factsheet for employers about the impact of the Uniformed Services Employment and Reemployment Rights Act (USERRA) during COVID-19.
Employers should note:
- There are no new USERRA obligations to consider under COVID-19.
- Employers should remember employment protections and reemployment rights under USERRA.
- USERRA covers any employees called to active duty who are members of the National Guard or Reserves.
- Employers should address state regulations if an employee is activated through state law.
- Employees may be furloughed or laid off when returning to work from active duty. Active duty employees can be reemployed to their position if it would have been available regardless of their absence due to their service.
- Employers can’t delay reemploying a worker coming back from uniformed service if there’s concern about exposure to COVID-19.
- When making decisions about service member (accommodation, reemployment, etc.), be sure to consult with an attorney.
- If you have concerns about a reemployed worker, take reasonable actions to restore the worker to their position, including paid leave, teleworking, or placing the worker in a similar position during quarantine before restoring them to their proper position.
Who: All employers and employees
When: Guidance published April 5, 2020
What: The Department of Labor (DOL) issued the Unemployment Insurance Program Letter 16-20 to clarify which employees are covered by the Pandemic Unemployment Assistance (PUA) program authorized by the CARES Act of 2020. To be eligible for PUA, the individual must self-certify that s/he is unemployed, partially unemployed, or unable to work due to one of the specified COVID-19–related reasons. The guidance specifies that leaving a job without good cause in order to obtain benefits may be considered fraud.
Covered individuals include those who:
- Are not eligible for benefits under the regular state unemployment compensation system;
- Have exhausted all of their benefits under the Pandemic Unemployment Compensation (PUC) program;
- Are self-employed;
- Are seeking part-time employment; and
- Are lacking sufficient work history.
Individuals who have the ability to telework with pay and those receiving paid leave benefits are not eligible for PUA.
States determine the amount of unemployment or partial compensation benefits, and the individual is eligible for up to 39 weeks of pay. Eligible individuals also receive the supplemental payment of $600 for every week the worker is unemployed, partially unemployed, or unable to work (ending July 31, 2020).
- Do not promise individuals that they will receive unemployment compensation. The state will determine eligibility, compensation, and duration of compensation.
Who: Employers subject to the Family Medical Leave Act (FMLA); Employers subject to the Fair Labor Standards Act (FLSA)
When: March 9, 2020
Update 7/21/20: The Department of Labor released updated Q&As about FFCRA, FLSA, and FMLA.
The Department of Labor issued new guidance offering clarity on two vital federal regulations that may be affected during the pandemic COVID-19.
Key points of clarity for FMLA included:
- Leave taken to avoid exposure to COVID-19 is not counted as FMLA
- Eligible employees are only able to take unpaid FMLA leave for their COVID-19 or to care for a family member with COVID-19 only if the infected person suffers complications creating a “serious health condition.”
- The DOL still encourages flexible leave policies if they or a family member contract the virus to slow the spread.
For the FLSA:
- Employers do not need to pay non-exempt employees for hours they do not work, even when due to a business closure due to COVID-19.
- Salaried, exempt staff may be required by an employer to take vacation or paid time off in the case of an office closure from COVID-19. If the exempt employee does not have vacation or PTO available, the employee must still receive full guaranteed salary for a week when work is performed.
- Telework can be encouraged or required for infection control or prevention.
- Non-exempt employees can be asked to work extra hours as long as they are paid minimum wage and overtime for any hours over 40.
Assess current leave policies and Fair Labor Standards Act related policies to ensure alignment with current guidance from the Department of Labor.
Who: Employers affected by COVID-19 related employment issues
When: March 12, 2020
The U.S. Department of Labor provided specific scenarios to help states assess unemployment compensation benefits in light of the challenges faced by employers caused by COVID-19. The guidance included specific information about flexibilities under federal law for states to adjust unemployment insurance programs based on the circumstances of the global pandemic. The guidance notes that states have the option to pay unemployment benefits in cases such as:
- An employer must temporarily cease operations, preventing employees from working due to COVID-19
- When an employee is quarantined and expects to return to work after the quarantine period ends
- If an employee leaves employment to reasonably avoid exposure or infection or to care for an ill family member.
Importantly, the guidance also points out that in cases of COVID-19 related impacts, federal law does not require the employee to resign in order to receive benefits. States may also waive their unemployment waiting periods if they choose to. Finally, the guidance cites the benefits of work sharing or short-term compensation (STC) programs and encourages employers to develop short term compensation plans where STC is available (28 states). STC allows employers to avoid layoffs by reducing work hours for employees while those employees collect partial unemployment payments.
- Understand the state-administered unemployment insurance program, and how the state plans to administer that program in light of the COVID-19 pandemic.
- Inform employees of relevant COVID-19 related policies for unemployment eligibility.
Due to COVID-19, the Federal Motor Carriers Safety Administration has waived certain commercial motor vehicle pre-employment test screenings from June 5, 2020, to September 30, 2020. Employers may temporarily eliminate pre-employment testing for drivers who recently participated in a controlled substance testing program within 90 days of the hire or rehire date. The previous rule applied to drivers who had participated in a controlled substance testing program within 30 days of hire or rehire date.
Employers should still implement other applicable testing like the Drug and Alcohol Clearinghouse, background checks of controlled substance and alcohol testing history, and any other state or local orders.
Who: Employers with workers requiring I-9 forms and with job tasks that involve handling vehicles
When: Effective Immediately
What: Despite closing physical Motor Vehicle Department office locations, several states extended the expiration date of qualified driver’s licenses. A driver’s license that appears expired on its face, but is valid because of an extension, can be used as proof of identity for the Form I-9 document.
- Confirm that your state has provided automatic extensions and the length of extension.
- Inspect the employee’s document with the employee present.
- When documenting an expired license, enter the expiration date in Section 2 and enter “COVID-19 EXT” as Additional Information.
- If you’re filling out Section 3 for Reverification, add “COVID-19 EXT” in the Additional Information field or in the margin.
- If the state has extended the expiration dates, employers should enter the original expiration date on the employee’s license.
Who: All DOT-regulated employers and employees
When: Effective March 23, 2020
What: The DOT has issued guidance to DOT-regulated employers regarding how to comply with applicable DOT training and testing requirements during the COVID-19 pandemic.
Employers should make all reasonable efforts to continue testing and training as usual. If fixed-site collection facilities are unavailable, consider mobile collection services. Document the reasons why tests or training cannot be completed due to quarantine or other COVID-19–related restrictions. Conduct the tests and complete the training at a later date when feasible.
The DOT asks employers to be sensitive to the needs of applicants and employees who are afraid to go to the testing site due to COVID-19 and verify with the collection site that it has minimized the risk of exposure to the virus.
If testing is unavailable, or if the applicant/employee refuses testing, employers must continue to follow the underlying applicable regulations. A prospective employee who must have a negative pre-employment drug test result, for example, may be hired but may not perform any DOT safety-sensitive functions until passing the drug test.
- Follow the regulations applicable to your organization.
- Revisit your back-up plan to ensure that your alternate modes of testing and training account for circumstances such as these, where collectors and collection sites may be unavailable due to a national emergency.
UPDATED 6/7/21: EEOC COVID-19 Vaccine Guidance
Update 6/7/21: On May 28, 2021, the EEOC updated its guidance about equal employment opportunity laws and COVID-19 vaccines. It deferred to the Food and Drug Administration on questions about the Emergency Use Authorization and COVID-19 vaccines. Among the highlights that employers should consider when figuring out how to navigate vaccinations and the workplace:
- Required vaccinations to enter the workplace. Employers may require employees to be vaccinated when they enter the workplace, if they also comply with the reasonable accommodation requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other federal EEO laws. Employers should consider state and local requirements in this regard, in addition to individuals and groups who may face barriers to getting vaccinated and could be negatively impacted by a workplace requirement.
- Incentivizing voluntary vaccination disclosures. Federal EEO laws aren’t prohibitive and allow for employers who want to offer incentives to employees to volunteer vaccination documentation or another kind of confirmation. Employers who acquire vaccination information are required to treat it like confidential medical information as outlined by the ADA.
- Employers administering vaccinations and incentives. If an employer is administering vaccines to employees, they may offer an incentive, if it’s not coercive, to get vaccinated. The EEOC reminded employers that large incentives might also pressure employees to disclose medical information during a pre-vaccination screening.
- Distributing COVID-19 educational information. Employers can distribute information about COVID-19 vaccines and vaccine benefits to employees and their families.
The EEOC also published a new resource for employees and individuals about the federal laws that protect against employment discrimination during the pandemic.
The EEOC updated it’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws with Section K regarding Vaccinations.
The new guidance doesn’t directly state that employers can require employees to get the vaccine, but there is information about circumstances where employers may be able to. Only one scenario is provided, and it states that a vaccine requirement is permitted if employees, who are physically on-site and cannot complete their job function remotely, pose a “direct threat” to themselves or other people if they remain unvaccinated.
Employers may ask for proof of vaccination. Asking for proof in and of itself likely won’t elicit additional information about a disability but asking any subsequent questions, such as why an employee did not receive the vaccine, could be subject to ADA standards. When asking for proof, employers should ask or remind employees no to provide any other medical information.
If an employer requires workers to get the COVID-19 vaccine, they generally must provide reasonable accommodation for those with disabilities or religious reasons. Employers cannot disclose who has been vaccinated or not and who has received a reasonable accommodation. Additionally, the EEOC suggests that employers treat all religious accommodation requests as sincere and should seek legal counsel before considering asking for supporting information for a religious accommodation.
Administering a COVID-19 vaccine isn’t considered a “medical examination” under the ADA.
For employers administering the immunizations, it is acceptable to ask pre-screening vaccination questions if they comply with ADA requirements and can be shown to be job-related and consistent with business necessity. If employers choose to ask prescreening questions, they should be aware that any questions about a person’s genetic information could violate the Genetic Information Nondiscrimination Act (GINA). If the employer immunization program is voluntary for workers, the pre-screening questions do not necessarily need to be job-related and consistent with a business necessity, but employees can decide whether to answer the pre-screening questions. In that case, the employer can refuse to administer the vaccine but can’t take any action (retaliation, intimidate, or threaten) against the employee. The EEOC also reminds that the ADA requires employers to keep any employee medication information confidential, which includes pre-screening vaccination information.
< Back >
Update 9/8/20: EEOC updated the What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, and The COVID-19 Pandemic and Antidiscrimination Laws.
As part of a recent updated guidance, the EEOC clarified that employers that test for COVID-19 antibodies are in violation of the Americans with Disabilities Act. Employers may test for current cases of COVID-19.
The EEOC states that an antibody test is considered a medical evaluation under the ADA and doesn’t meet the definition of “job related and consistent with business necessity.”
Additionally, pregnant workers can’t be discriminated against when returning to work, although accommodations may be made for them as long as they are consistent and non-discriminatory.
Employers aren’t required to accommodate employees that don’t have a disability, even in the case of an employee who doesn’t want to risk exposing a family member to COVID-19 who is part of a vulnerable population. However, employers may choose to make accommodations for them as long as they are consistent and non-discriminatory.
In recent edits to the EEOC’s COVID-19 FAQs, employers are reminded to not prevent older employees ages 65 and up, from returning to work. To do so is in violation of the Age Discrimination in Employment Act (ADEA) that states employers are banned from discriminating against people aged 40 and older.
The ADEA doesn’t include reasonable accommodation like the Americans with Disabilities Act (ADA) but employers have the right under federal law to provide accommodations for employers age 65 and older, even if workers age 40 to 64 are treated differently or less favorably. Additionally, workers age 65 and older may also have medical conditions that bring them under the protections of the ADA.
Be sure to consult with legal counsel as you address employee concerns when returning to work.
Who: All employers
When: Effective Immediately
What: The Equal Employment Opportunity Commission issued guidance stating that as employers work to prevent COVID-19 from entering their facilities, they may require employees be tested before entering the workplace, regardless of symptoms.
The Americans with Disabilities Act requires that any mandatory testing must be “job related and consistent with business necessity.” The EEOC correlated this phrasing of the ADA with the risk that COVID-19 poses to the health of others in the workplace. Employers may also ask about symptoms that health authorities have stated are associated with COVID-19.
Testing isn’t meant to take the place of other hygiene and sanitation protocols that are recommended by other federal and local government agencies.
- If your business decides to test employees for COVID-19, develop and implement a testing process and procedure that isn’t discriminatory and meets all requirements for private health information. See KPA’s temperature check considerations on our return to work safely page.
- Use a COVID-19 test that is reliable and accurate. The test you use might also come with additional requirements, e.g., processing by a certified laboratory.
- Identify who will administer the tests, e.g., a nurse, a third-party vendor, etc.
- Be sure to review your plan and procedure with legal counsel to verify it meets all federal and state government requirements, and especially privacy requirements.
- Employers with 100+ employees
- Federal contractors with 50+ employees and contracts of $50,000+
When: Effective Immediately
What: The Equal Employment Opportunity Commission (EEOC) is delaying the collection of 2019 EEO-1 Component 1 information until March 2021. The decision comes as a response to the COVID-19 pandemic, in hopes that the new timing will allow filers will have a better ability to submit timely, accurate, valid, and reliable data. Employers are required by the EEOC to submit their number of employees by job category, race, ethnicity, and sex.
Although this delay still needs to be finalized by the Office of Management and Budget, impacted employers can expect to see additional notifications regarding the precise date that the surveys will open.
It should be noted that the collection of 2020 EEO-3 and EEO-5 data has also been delayed to March 2021.
- Prepare your data for submission in 2021.
Who: All employers
When: Effective Immediately
Update 9/10/20: The EEOC updated its guidance to provide more clarity and flexibility to employers:
- The updated guidance provides that employers aren’t prohibited from following CDC recommendations by the ADA, and they should use its most updated guidance. Employers may administer COVID-19 testing if the worker poses as a harmful threat to the workforce.
- If employers accommodated telework during the pandemic, it isn’t an automatic requirement to do so moving forward. Employers will need to determine if individual circumstances make it reasonable and aren’t an undue hardship.
- The EEOC reminds employers to use a “good faith” processes and lean towards flexibility during the pandemic and afterward.
The Equal Employment Opportunity Commission (EEOC) issued clarifying guidance on how employers can navigate the issue of COVID-19 in the workplace with their employees. The guidance provided is consistent with the Commission’s previous guidance during other pandemics, including H1N1.
Without violating the American Disabilities Act or the Rehabilitation Act, employers can:
- Ask workers if they are feeling any COVID-19 symptoms, as long as the individual’s information is kept as a confidential medical record.
- Take employees’ body temperature (be advised that there may be additional state privacy regulations that are also in play when taking employees’ temperatures).
- Instruct employees who experience symptoms of COVID-19 to go home or to stay home.
- Require returning employees to obtain and provide a doctor’s note (or equivalent documentation, such as an email certification) that states they are fit to return to work.
- Screen all job candidates for COVID-19 symptoms after making a conditional job offer, provided that the practice is consistent with all incoming employees for the same type of job.
- Withdraw a job offer where a candidate has symptoms of or tests positive for COVID-19, as long as the job states it must start immediately.
- For employees that aren’t yet working from home regularly check in with them about their health.
- Remind employees that if they are experiencing any symptoms consistent with COVID-19, they should stay home.
- Review your current job offers and revise your onboarding status based to include consistent screening for COVID-19 symptoms.
Although last July’s Notice 2020-54 included reporting instructions for FFCRA-related leave on employees’ W-2 forms, the Form W-2 didn’t include instructions regarding this new reporting requirement. Each type of FFCRA wage must be reported separately:
- Qualified sick leave wages must be reported on boxes 1, 3, and 5 on the W-2. They must also be reported on Box 14 or on a separate statement provided alongside the W-2. It should be labeled as “sick-leave wages subject to the $511 per day limit” or something similar. Sick leave used to care for another person must be reported in the same way and labeled with something like “sick leave to $200 per day limit.”
- Qualified family leave wages must be reported on boxes 1, 3, and 5 on the W-2 and reported separately on Box 14 or a separate statement. There should be a label that is something like “emergency family leave wages.”
Employers may need to reissue their employees’ W-2 forms if they have already been sent out. There is a difference between a “corrected W-2” or “amended original.” A “corrected W-2” is when the employer has filed with the government and the “amended original” is if the employer hasn’t yet filed with the government.
- Review your W-2 forms and ensure that any FFCRA-related leave used by your employees is reflected on the forms.
- If you report wages on a separate statement, ensure that the statement is sent with employees’ W-2 forms.
- If you have already sent out Form W-2 to your employees, determine if you need to send an “amended original” or “corrected W-2” form.
Aligning with the COVID-related Tax Relief Act of 2020, the IRS issued Notice 2021-11 on January 19, 2021, to extend the deadline for employers to pay certain deferred taxes from April 30, 2021, to December 31, 2021. If employee payroll taxes aren’t paid by January 1, 2022, they will start to accrue interest, penalties, and additional tax.
As background, a previous IRS Notice (2020-65) from September 2020, had established the extension date of April 30, 2021. Employers could defer the withholding and payment of the employee’s portion of social security tax (not Medicare) on certain qualifying wages paid between September 1, 2020, to December 31, 2020. It also allowed that if an employer defers those payroll taxes, they must withhold and pay all the deferred taxes from the employee’s wages paid between the period of January 1, 2021, through April 31, 2021. Interest, penalties, and additional taxes would then begin to accrue starting on May 1, 2021.
In mid-May, the IRS released two notices allowing employees to make changes to their group health insurance coverage and to their flexible spending accounts for health care and dependent care.
Notice 2020-29 informs employers that they may allow employees to enroll in employer-sponsored health plans, flexible spending account, or dependent care assistance programs with a new election through a menu-selection of options, even if the employee had declined enrollment previously. Employees may also switch health plans, dropping current coverage for another plan or a different tier of a current plan. Employers aren’t mandated to offer these changes, and can choose to adopt one or all election changes.
Notice 2020-33 increased the carryover limit for health FSAs that use the carryover option. The maximum amount of unused funds that may be carried over to the plan year starting in 2021 is now $550. Additionally, the Notice states that the temporary relief for high-deductible health plans may be retroactively applied to January 1, 2020.
Under Notice 2020-50, the IRS has expanded the number of qualified taxpayers who can access their retirement plans using provisions under the CARES Act. The intention is for retirement participants to have better access to plan loans and distributions.
Taxpayer eligibility has expanded to include those who have:
- Seen a reduction in pay, a job offer rescinded, or a delayed start date because of COVID-19.
- A spouse or other member of the household who had a reduction in pay, a job offer rescinded, a delayed start date, or has been quarantined, laid off, furloughed, or received a reduction in hours because of COVID-19, or can’t work because of a lack of child care.
- A business owned or operated by a spouse or household member that closed or had to operate on reduced hours because of COVID-19.
The loan doesn’t have to align with the direct financial impact COVID-19 has on the individual, employees don’t need to provide proof.
The Notice provides details for employers to use when reporting next year’s 1099 forms.
Who: Small and mid-sized businesses and their employees
When: FFCRA effective April 1, 2020; new IRS guidance published March 31, 2020
What: The IRS has published new guidance that explains how employers can claim the tax credits offered in the Families First Coronavirus Response Act (FFCRA) related to giving employees paid leave. Among other issues, the agency specified how to determine the amount of the credits, how to document an employee’s eligibility for the credit, and how to claim the credit.
To claim the credit, employers must obtain written requests from employees who are requesting Emergency Paid Sick Leave or Emergency FMLA leave for COVID-19–related reasons any time during the period of April 1, 2020 through December 31, 2020. Documentation must include:
- Employee documentation supporting the request for leave (see FAQ 44 through 46 of the IRS Guidance);
- How you determined the amount of qualified sick wages paid (see FAQ 20 through 24) and family leave wages you paid (see FAQ 25 through 30) to each employee, including records of work, telework, and qualified family leave;
- How you determined the amount of qualified health-plan expenses that the employer allocated to wages (see FAQ 31 through 36 for computation methods);
- Copies of any completed Forms 7200 Advance of Employer Credits Due to COVID-19 that you submit to the IRS; and
- Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that you submit to the IRS.
- Create your written request forms for employees who request leave under these programs. Add the statement, “Additional documentation may be required,” to your forms in case the IRS further clarifies this issue in the future.
- If your business is eligible for the credit, you may immediately begin reducing the federal employment taxes you deposit with the IRS.
- Check IRS.gov for the latest information.
High-Deductible Insurance Plans to Cover Costs of COVID-19 Testing and Treatment Before Patients Reach Deductible
Who: Employers whose employees are enrolled in high-deductible health plans
When: March 11, 2020
What: Although now required by the Families First Coronavirus Response Act, the Internal Revenue Service (IRS) initially issued guidance in response to the COVID-19 health emergency that allows designated high-deductible health plans (HDHPs) to cover the costs of testing and treatment for COVID-19 with a smaller deductible or with no deductible at all, and included the use of telehealth services. This flexibility means that COVID-19 related medical care costs can be offered at a low or no cost for insured employees, without impacting minimum deductible and out-of-pocket expense maximums for the employer.
- Contact your HDHP claims administrator or insurer to discuss options for implementation
- Work with the HDHP provider to generate a list of COVID-19 related medical expenses that will be covered by such a change
- Communicate any changes with respect to COVID-19 related medical services to employees to make sure they aren’t discouraged from seeking testing and treatment due to cost
Who: All individuals
When: July 15, 2020
What: The U.S. Treasury and Internal Revenue Service have deferred the federal income tax due date from April 15, 2020, to July 15, 2020, without incurring interest, penalty, or an additional tax based on a failure to pay. This change impacts the 2019 taxable year’s federal income tax payments and 2020 taxable year’s federal estimated income tax payments of up to $10 Million for a C corporation or a group of C corporations, and up to $1 Million in an individual’s case.
The deferral doesn’t impact state and local tax deadlines or federal non-income tax deadlines.
- If you are filing as a C corporation or a group of C corporations, review your current tax filing status and be sure to file on time.
- Research whether your state income tax filing has changed or if you must still meet the original deadline.
President Biden Issues Executive Order and OSHA Releases New Guidance to Protect Worker Health and Safety
On January 21, 2021, President Biden issued an Executive Order directing OSHA to consider workplace emergency temporary standards (ETS) related to COVID-19. If the ETS is considered necessary, the order, titled “Protecting Worker Health and Safety,” calls on OSHA to issue them by March 15.
The order also directs OSHA to update COVID-19 safety recommendations for businesses within two weeks, review its enforcement efforts and study whether an ETS is necessary.
On January 29, 2021, OSHA released the Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (OSHA Website) per President Biden’s Executive Order.
Although not yet a requirement for employers, the updated guidance provides information to help employers develop elements of a COVID-19 prevention program:
- Identify a COVID-19 workplace coordinator.
- Perform a thorough hazard assessment focusing on identifying COVID-19 potential high exposure areas (e.g., specific shared amenities and customer interaction areas).
- Education and training.
- Determine control measures that will minimize the spread of the virus such as barriers and ventilation.
- Conduct cleaning and disinfection if someone has a suspected or confirmed case of COVID-19.
- Isolate any employees who is showing COVID-19 symptoms at work.
- Provide guidance on screening and testing.
- Record and report COVID-19 infections or deaths (related to work).
- Provide the COVID-19 vaccine without cost to employees (when available) and continue using protective measures even with vaccinated employees.
- Communicate COVID-19-related policies and procedures to English and non-English speaking employees.
- Implement protections from retaliation for employees that bring up COVID-19-related concerns.
- Implement policies that don’t punish employee absences and encourage workers to stay home if they might have been infected with the virus.
- Implement policies and procedures for employees who are possibly infected or are infected with COVID to stay home, minimize the impact of quarantine/isolation with telework and flexible paid leave.
Additional Details from OSHA’s Guidance
The guidance also includes further information and changes from previous guidance on preventing the spread of the virus by ensuring that anyone infected or who might have been infected don’t come to work, physical/social distancing, using surgical masks or cloth face coverings. There is more guidance on PPE, ventilation, and cleaning and hygiene protocols.
Face Coverings or Masks. Employers should provide all workers with face coverings or surgical masks unless the employee’s job tasks require a respirator.
Face coverings should use two layers of material and not use exhalation valves or vents. If the face coverings are easily soiled or could become wet, employers must provide daily or frequent replacements. In operations with deaf workers, employers should try to offer face coverings that provide a clear covering over the mouth.
- Ensure ventilation systems operate properly and provide acceptable indoor air quality for each space’s current occupancy level.
- Increase ventilation rates wherever possible.
- Increase outdoor air with open windows and doors, when weather allows and it doesn’t pose a safety or health risk (e.g., triggering asthma).
- Decrease or stop recirculation by opening minimum outdoor air dampers. Taking this action won’t affect thermal comfort or humidity in milder weather although could be hard to do in cold or hot weather.
- Check filters for service life and proper installation.
- Run systems longer, 24/7 where possible, to improve air exchanges in the area.
- Make sure restroom exhaust fans are functioning properly and operating at full capacity.
- Implement portable high-efficiency particulate air (HEPA) fan/filtration systems to improve air cleaning.
- If ventilation can’t be increased and to ensure an effective level of dilution ventilation, decrease the occupancy level in the building.
Quarantines. In addition to the previous quarantine guidance from OSHA, the agency advises that employees who have come into direct physical contact with someone who has COVID-19, shared eating or drinking with them, or somehow got any respiratory droplets on them (e.g., from sneezing or coughing), should also quarantine.
- Although not yet a requirement, employers should take the opportunity to review their current policies and procedures with OSHA guidance on a COVID-19 Prevention Program.
- Prepare for the possibility of a COVID-19 emergency temporary standard.
OSHA has designed a COVID-19 web resource for employers on navigating workplace safety during the holidays.
Industry-specific resources are included for Retail Sales, Delivery, and Order Fulfillment, as well as for All Workplaces.
Among the most cited standards include:
- Respiratory protection
- Recording and reporting occupational injuries and illnesses
- General Duty Clause
The one-pager includes the requirements that employers must follow.
In early November, OSHA released workplace guidance on how to employers can maintain adequate ventilation for a healthy and safe work environment during the COVID-19 pandemic.
Businesses should work with HVAC professionals to determine how best to optimize ventilation for their workspace. Although there are more considerations, here are a selection:
- Using filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher.
- Increasing the system’s outdoor air intake. Open windows or other fresh air sources.
- Consider portable high-efficiency particulate air (HEPA) fan/filtration systems.
- Make sure exhaust air isn’t being pulled back into the building.
Be sure to read the full one-page guidance.
Who: Health care workers and other workers that have a high or very high exposure risk to COVID-19
When: Effective immediately, until further notice
What: In October, OSHA released temporary guidance for the initial and annual fit-testing requirements for tight-fitting powered air-purifying respirators. The guidance allows the use of NIOSH-approved tight-fitting powered air-purifying respirators when initial or annual fit testing isn’t possible because of supply shortages.
Employers should consider alternative respirator classes that provide equal or better protection, such as N99, N100, R95, R99, R100, P95, P99, P100 and NIOSH-approved, non-disposable elastomeric respirators or powered air-purifying respirators that are loose or tight-fitting.
The temporary guidance doesn’t apply to air-purifying respirators that are:
- Not NIOSH-approved
- Used by workers with low or medium COVID-19 exposure risk
- Used by workers to minimize exposure to other airborne hazards, not including COVID-19
- Loose-fitting or don’t require fit testing.
Posters and Guidance for Automotive Service Workers, Janitorial Services and Restaurant Dine-in Service
OSHA released 3 new one-pagers or posters for the restaurant and janitorial industries.
Steps to Protect Automotive Service Workers from Exposure to Coronavirus includes guidance like, but not limited to, offering pickup and drop-off service, closing or limiting customers in reception and waiting rooms, using mobile services like contactless payments and appointment scheduling, and covering and cleaning seats, key fobs, and steering wheels after use.
The Steps to Protect Cleaning Staff During COVID-19 (Spanish version here) poster advises workers on how to stay safe during the pandemic. For example, action items include workers staying home when they feel sick, wearing disposable gloves, avoiding dry sweeping wherever possible, wiping equipment before and after use, and reporting any health and safety concerns to supervisory staff.
The COVID-19 Guidance for Restaurants (Spanish version here) alert is for restaurants and beverage service businesses that are resuming dine-in services and need to protect their workers. The one-pager advises actions including increasing cleaning and disinfecting of surfaces like doorknobs and tables, following state and local occupancy requirements, and using mobile services like ordering, arrival, and contactless payments.
OSHA has compiled and published the best practices for employers who are navigating the issue of preventing COVID-19 and the risk of heat illness. New guidance has been placed on posters for the use of cloth face coverings and heat illness prevention as well as for wearing cloth face coverings inside and outside in hot and humid environments.
The new guidance is comprehensive and includes several points like:
- Using cloth face coverings when workers are within 6 feet of each other during group travel or meetings.
- Allowing workers to remove the coverings when they can maintain at least 6-foot distance from each other.
- Increasing water and rest breaks in spaces with a cooler temperature, but also ensuring physical distance in those spaces.
- Providing clean face covering replacements as needed for workers to change throughout a work shift.
UPDATE 6/1/21: COVID-19 Recordkeeping: OSHA Updates Enforcement Guidance and Recordkeeping Requirements
Who: All employers (employers with 10 or fewer employees are not required to record cases, but they must report any illness that results in death, in-patient hospitalization, amputation, or loss of an eye.)
Update 6/1/21: In order to not discourage vaccination efforts, OSHA released additional guidance about whether employers need to record adverse reactions to COVID-19 vaccines on OSHA 300 logs. The agency states that it will not be enforcing 29 CFR 1904’s recording requirements for any workers side effects from a COVID-19 vaccine.
This is a revision to its previous guidance and states the employers don’t need to record COVID-19 vaccine side effects, regardless of whether they require, recommend, or incentivize vaccinations.
This guidance is in effect through May 2022.
Update 4/22/21: OSHA’s COVID-19 FAQs webpage has been updated to address vaccination questions and reporting/record keeping. For example, if an employer mandates vaccinations and an employee has a reaction, the employer must record the event under 29 CFR 1904.6 and 29 CFR 1904.7.
Update 10/5/20: OSHA has released 3 new Q&As to help clarify when employers should report to OSHA if employees have been hospitalized or died because of COVID-19. The new Q&As, which can be found under the Reporting section of OSHA’s COVID-19 Frequently Asked Questions asserts that:
- An employer must report to OSHA within 24 hours of hospitalization if the employee has been admitted to a hospital inpatient setting due to COVID-19 and the hospitalization occurred within 24 hours of workplace exposure to COVID-19.
- A COVID-19 “work-related incident” is exposure to COVID-19 at work.
- An employer must report a fatality that has occurred within 30 days of a COVID-19 work-related incident. The employer must report the death within 8 hours of finding out or knowing that the cause of the employee’s death was a work-related case of COVID-19.
To report a fatality or inpatient hospitalization, employers can either:
- Call the closest OSHA office
- Call the OSHA hotline, 1-800-321-6742
- Submit an electronic report online
Prepare to have your business name, name of affected employee, location of the incident, date and time, description of the event, and follow-up contact information.
Starting May 26, 2020, to ensure that employers are protecting their employees, OSHA has revised its enforcement policies by increasing in-person inspections of all workplaces. OSHA is also revising its enforcement policy for recording COVID-19 cases.
As non-essential businesses begin reopening based on state and local guidance, the need for personal protective equipment is more widespread, and the risk of workplace transmission varies by categories of industry and type of workplace. Therefore, OSHA will be increasing in-person inspections to ensure compliance.
Inspections will vary by industry risk (from very high to low), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection, though the latter will be less frequent in low-risk industries. Low-risk industries are businesses where employees aren’t expected or at a high risk of coming into contact with a confirmed COVID-19 case or frequent, close contact with the general public.
OSHA will be prioritizing COVID-19 inspections.
Under the new policy, OSHA will be enforcing COVID-19 illness-related recordkeeping requirements of 29 CFR § 1904. Employers must make a reasonable effort to determine if the COVID-19 case is work-related, using the evidence available to them.
A reasonable effort may include conversations with the employee about how they think they contracted the virus, about activities outside of work that may have exposed the employee, or about reviewing the work environment with them for possible areas of exposure.
- The case, as defined by the CDC, is confirmed.
- The employee was exposed to COVID-19 in the work environment as defined by 29 CFR § 1904.5.
- The case meets general OSHA recordkeeping standards, as defined by 29 CFR § 1904.7 because it resulted in death, days away from work, restricted work, job transfer, or medical treatment, or loss of consciousness.
A recorded COVID-19 case in the workplace doesn’t mean an OSHA requirement was violated. OSHA will take into consideration the information available before and after the decision about work-relatedness was made.
Factors in favor of a work-related, reportable case:
- Several confirmed cases occur among employees who work closely together, without another explanation for the cases.
- A case(s) occurs shortly after “lengthy, close” exposure to someone at the workplace, without another explanation for the case.
- A worker’s job often puts them in close contact with a public that has a significant number of cases, without another explanation for the worker’s case.
Factors that aren’t favorable of a work-related, reportable case:
- A single case occurs at the workplace, and the worker doesn’t interact with the public.
- The worker interacted with a close family member, significant other, or friend who had COVID-19 during the time the worker may have been infected.
What Should You Do:
- When you become aware of a COVID-19 case in your workplace, communicate and talk with the impacted employee about their possible exposure in the workplace
- Consult with legal counsel about the case and whether it may be recordable.
- Be sure to keep all of your internal records about incidents, training, etc. up-to-date and ready in the case of an OSHA inspection.
- Follow all applicable privacy and confidentiality laws and regulations when handling employee records and when communicating with employees.
On May 17, 2021, OSHA declared that it is reviewing the CDC’s face mask guidance for fully vaccinated individuals and stated that employers should follow the CDC’s guidance until a review is complete.
OSHA encouraged employers to follow workplace safety protocols and adhere to state and local requirements
Businesses are advised to continue using safety protocols that account for workers, visitors, customers, and others who will be a mix of vaccinated and unvaccinated people.
In a series of updated FAQs, OSHA urges returning employees to wear face coverings.
In a 3-Stage Roadmap, OSHA outlines how non-essential businesses can begin to plan for and reopen their businesses:
- Stage 1: Teleworking and Accommodations for High-Risk Employees
- Stage 2: Easing Restrictions for Employees in the Workplace
- Stage 3: Eliminating Restrictions
The guidance recommends conducting a workplace hazard assessment to identify potential COVID-19 exposure areas for each job category and protective measures. Workplace testing, temperature checks, and health screenings are acceptable if conducted transparently with employees, confidentially, and without retaliation. The agency strongly encouraged that employees check their own temperatures at home instead of at work, and that businesses be accommodating with their sick leave policies.
Businesses don’t have to keep records of temperature checks and health screenings. If they choose to keep records, businesses must comply with the Access to Employee Exposures and Medical Records and not to violate other regulations like blood-borne pathogens standards.
Cloth face coverings are recommended by OSHA but aren’t considered personal protective equipment and aren’t subject to fit testing and training. They can’t be used in place of N95 masks.
Update 10/22/2020: OSHA updates its Face Covering FAQs under the section Respirators and Particle Size. The question is, “Will an N95 respirator protect the wearer from the virus that causes COVID-19?” Although it provides further details in its answer about the virus’ particle size and fit testing, the short answer is yes it is more effective at filtering the virus’ particles.
In a new Frequently Asked Questions document, OSHA outlines the differences between cloth, respirator, and surgical mask face coverings.
Of note, OSHA clarifies cloth face coverings aren’t considered personal protective equipment and it isn’t required that employers provide face coverings, but it is an option to help control the spread of workplace-related infections. OSHA generally recommends wearing cloth face coverings in the workplace. Employers should evaluate the use of cloth face coverings for particular conditions or job tasks where it might not be appropriate, and a surgical mask or face shield should be worn.
OSHA reminds employers that they are required to meet the General Duty Clause that mandates they make reasonable and effective effort to create a safe and hazard-free environment.
Although this is OSHA’s guidance, be sure to check your state and local orders about face covering requirements that you must adhere to.
Who: Employers in Manufacturing, Construction, Retail, Restaurants, and Meatpacking
When: Effective Immediately
What: To help businesses navigate reopening workplaces, OSHA has released guidance for several industries including Manufacturing, Construction, Retail (including pharmacies and grocery stores), Restaurants. Additionally, in partnership with the CDC, OSHA also released guidance for the meatpacking and poultry industry.
There are several core recommendations for all of the industries including:
- Employees staying home if they’re sick;
- Permitting the use of face masks to prevent the spread of COVID-19;
- Promoting respiratory etiquette, like properly covering coughs and sneezes;
- Encouraging personal hygiene, like handwashing, and providing employees with antibacterial substances and soap and water;
- Using EPA-approved List N disinfectants; and
- Promoting a safety culture where employees can report health and safety concerns.
- Read through the industry-specific guidance to ensure your COVID-19 response and prevention planning aligns with OSHA’s recommendations.
- Continue to check OSHA’s website for updated COVID-19 guidance and resources.
NEW: Construction Work
Who: Employers with workers required to wear N95 masks
When: Effective Immediately
What: The U.S. Occupational Safety and Health Administration (OSHA) released guidance that employers may consider extending the use or reusing N95 masks, or using masks that are passed an expiration date for employees that require respiratory protection. This guidance applies to all industries and all workplaces that must adhere to 29 C.F.R. § 1910.134.
Although this is federal guidance, OSHA-approved state plans may have differing regulations, and employers should consult with their legal counsel.
N95 Mask Considerations:
- 8 hours of continuous use is acceptable, unless the structure of the mask is compromised.
- Limit reuse to 5 times or follow the N95 manufacturer’s guidelines.
- Alert employees about the use of reused or expired masks.
- Ensure employees conduct a seal check every time they put on the mask. If the mask doesn’t pass check, it shouldn’t be used.
- Train employees on what to look for in a compromised mask.
- Be sure employees are trained in how to properly don, doff, and store a reused mask to ensure it’s not compromised.
- Identify when and how a mask will be considered contaminated and discarded.
- If you’re not using an N95 mask, be sure your respiratory protection is NIOSH-approved.
- Update your respiratory protection plan to accommodate these changes and continue to manage your program and ensure it meets OSHA’s respiratory protection standards.
Who: All employees and employers
When: Effective April 6, 2020
What: The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a new workplace poster with advice on how to minimize workers’ risk of exposure to COVID-19. This is “the latest effort by OSHA to educate and protect America’s workers and employers during the coronavirus pandemic.”
Recommendations include encouraging sick workers to stay at home, establishing flexible work sites, limited access to essential workers when possible, and others.
- Post the new poster where it can be easily seen by all employees.
- Frequently check OSHA’s coronavirus website for updates.
10 Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (English-language poster)
10 Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (Spanish-language poster)
Who: All employers
When: Effective April 10, 2020
Update 10/19/20: OSHA clarified COVID-19 Reporting Obligations for reporting work-related hospitalizations and fatalities. In September, OSHA provided clarification about recordkeeping but also included how quickly employers have to report an in-patient hospitalization or death to OSHA. In the case of in-patient hospitalization as a result of COVID-19 exposure at work, employers must report to OSHA within 24 hours of finding out about the hospitalization and determining that it was work-related.. If a work-related COVID-19 fatality occurs within 30 days of the exposure at work, employers must report the case to OSHA within 8 hours of finding out about the death and that the death was work-related.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published new, time-limited Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). The guidance clarifies when employers must report workplace cases of COVID-19, and how to document them. The intent is to have employers focus on implementing good workplace hygiene practices instead of, “…making difficult work-relatedness decisions in circumstances where there is community transmission.”
Employers of workers in certain industries (health care, emergency-response organizations, and correctional institutions) must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. OSHA does not require other employers to make the determinations required by 29 CFR § 1904 except when there is objective evidence the case may be work-related, and the evidence was reasonably available to the employer. If your business is not covered by 29 CFR § 1904, most workplace cases of COVID-19 are not reportable.
The guidance provides these additional tips for reporting cases:
- The case must be confirmed, and it must be work-related as defined by 29 CFR § 1904.5.
- COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300.
- If an employee requests that his or her name not be entered on the log, the employer must comply.
- Follow the determination rules under 29 CFR § 1904 if yours is a covered business, or when the case meets the exceptions if yours is not a covered business.
- Direct questions to Elizabeth Grossman, Director of the Office of Statistical Analysis, at (202) 693-2225.
- Check OSHA’s website for updates.
On February 17, 2021, the organization previously known as the American Society for Testing and Materials, published a nonregulatory standard for face coverings for use during the pandemic. The standard outlines the minimum care, duration of use, construction, particle filtration, sizing, labeling, and performance requirements for reusable face masks.
Masks that meet the new F3502-21 standard are intended for general use among the public and workers, not for use in medical settings or as respirators. There are two filtration types in the standard: 20% or greater, and 50% or greater. For comparison, N95 masks work at 95% filtration.
There are specific directions for mask manufacturers to follow if they want to include the F3502-21 label on their products. The certified products should have a label stating that it meets the ASTM F3502 standards for face coverings but isn’t a medical mask or respirator.
In addition to the new standard, ASTM International also published a white paper, “Collaboration to Advance Personal Protective Equipment (PPE) Safety, Quality, and Innovation.” The paper reviews the current development standards for PPE in light of the pandemic and three immediate next steps to take to address the challenges of PPE standards.
President Biden signed an Executive Order on January 22, 2021, asking the Department of Labor to clarify for state unemployment agencies the unemployment benefits for those workers who quit their jobs because they are afraid of contracting COVID-19 in the workplace.
The Executive Order states that employees have the right to a safe workplace and shouldn’t have to choose between their jobs and their families’ health.
On January 24, 2021, the Office of Management and Budget (OMB) issued a memo in response to an Executive Order from President Biden, establishing a mask mandate and social distancing requirement of 6 feet for all federal agencies. Masks should be consistent with CDC guidelines, including the accommodations for people who may be unable to wear masks; face shields are excluded from the list of acceptable face coverings.
Additionally, all federal agencies are encouraged to maximize the use of telework and limit the number of on-site employees to less than 25% capacity.
The President’s Executive Order also created a Safer Federal Workforce committee, led by the Office of Personnel Management, the General Services Administration Administrator, and the White House COVID-19 Response Coordinator.
The OMB’s memo also asks that all agencies create a COVID-19 Coordination Team by January 26, 2021. Each team is responsible for reviewing and assessing workplace safety rules and compliance. It also requests agencies work with local public health officials, conduct daily symptom monitoring of all employees and on-site contractors, and limit domestic and international travel.
On January 21, 2021, President Biden issued a national plan to address COVID-19, including an outline of several executive orders that could impact employers.
The plan has seven goals:
- Reestablish trust with Americans
- Develop and implement an effective and comprehensive vaccine program
- Minimize the spread of the virus through standards, including masks, testing, etc.
- Increase relief under the Defense Production Act
- Safely reopen schools, businesses, and travel
- Protect vulnerable populations and increase equity
- Reestablish U.S. global leadership and prepare for future similar emergencies
Safety goals within the plan include:
- Plan for mask or face covering mandates for federal buildings and land, public transportation, and requests to state governors
- Create a COVID-19 Pandemic Testing Board
- Strengthen supply chains through the Defense Production Act
- Continue to monitor- Executive Orders issued from the new administration.
- Review and modify your current policies and procedures based on Executive Orders that may impact employers and workplace safety.
President Trump Signs Executive Orders Regarding Unemployment and Payroll Taxes; Department of Labor and IRS Respond
Who: All employers
When: Effective Immediately
What: President Trump signed two Memoranda on August 8, 2020, that a have direct impact on employers.
The first memorandum moves the due date for federal payroll taxes from September 1, 2020, to December 31, 2020. Employers may allow the deferral of employees’ portion of the payroll taxes for Social Security and Medicare if the individuals are earning less than $4,000 on a biweekly basis.
The second memorandum gives states’ the flexibility to extend enhanced unemployment insurance benefits through December 31, 2020, although at a different rate of up to $400 (the $600 per week benefit expired on July 31, 2020). States may individually determine the level of benefits increase and must fund 25% of the increase.
The Department of Labor Publishes Guidance About Lost Wages Assistance Program
In the Unemployment Insurance Program Letter No 27-20, the Lost Wages Assistance Program (LWA) was formed under the Presidential Memorandum to provide some Unemployment Insurance claimants with up to $400/week in additional benefits. These funds cover unemployment that begins on or after August 1, 2020, and ends December 27, 2020, at the latest.
The program is administered to states through a grant process under the Federal Emergency Management Administration (FEMA). States have two benefits options to choose from: In order to receive the $400/week, states must contribution 25% ($100). The second option is $300/week, where FEMA will cover the whole amount and states may satisfy the 25% match without allocating state funds and paying the regular state UI unemployment benefits.
To qualify, individuals must certify that they are unemployed or partially unemployed due to COVID-19, and the state must confirm that person is receiving at least $100 in unemployment benefits
The IRS Publishes Guidance for Employers Regarding Payroll Tax Memorandum
The IRS published Notice 2020-65 guidance for employers as its response to President Trump’s Memorandum to defer payroll taxes.
The suspension of payroll taxes begins September 1, 2020, to December 31, 2020.
Employers who opt into the suspension would apply the rules to employees who earn a wage that is less than $4,000 for a two-week pay period, including workers who are salaried at less than $104,000 per year.
Employers who temporarily suspend the payroll taxes are responsible for paying back the missed taxes. They can begin to collect the missing amounts from employee paychecks between January 1, 2021, through April 30, 2021. If employers don’t pay back the missing amounts by April 30, 2021, penalties, interest, and additional tax will start to accrue on the remaining amount owed to the IRS.
For employees that leave their jobs before the end of December 31, 2020, and are part of the temporary suspension, employers are still responsible for the missing taxes. In those instances, the deadline to pay the missing amounts is extended and the employer can make arrangements with the departing employee on how to recuperate the taxes.
The IRS is working on a revised Form 941, Employer’s Quarterly Federal Tax Return, to accommodate for the withholding period.
- Consult with your legal counsel regarding these recent federal changes and if your state is impacted by them, and if this is an option you want to pursue.
- Work with your payroll, finance, and legal teams to determine your business’s response to the payroll tax deferral starting September 1, 2020.
- If you use a payroll vendor, be sure to look for and review any announcements on how they would implement a temporary suspension.
Because of the high unemployment rate resulting from COVID-19, President Trump issued Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, to suspend foreign workers from entering the United States to work.
The Order affects the following visas for people who are outside of the U.S., don’t have a nonimmigrant visa, or don’t have an official travel document:
- H-1B visas for professional and technology workers
- H-4 visas used by spouses of H-1B holders
- H-2B visas for seasonal workers in landscaping and hospitality
- L-1 visas for executives and managers transferred within companies
- J-1 visas for interns, trainees or summer work-study programs
Visa holders already in the U.S. are exempt from the ban and may continue to apply for extensions or seek adjustments and changes. Health care workers fighting COVID-19 and food chain supply workers are exempt from the ban as well. The Proclamation takes effect on June 24, 2020, through December 31, 2020, with the possibility of extension.
Who: All employees and employers
When: Effective April 16, 2020
What: The Trump administration released Guidelines for Opening Up America Again, a phased approach based on the advice of public health experts. The plan applies to the federal government—the nation’s largest employer—but it also provides guidelines and “gating criteria” that state and local officials can follow as they make the decision to end stay-at-home orders and allow businesses to reopen.
In phase one, employers should encourage teleworking and have employees return to work in phases. Employers should have a policy of strict social distancing, limit nonessential travel, and follow current CDC guidelines on isolation after travel. Employers should also make accommodations for vulnerable employees when possible.
In phase two, schools, day care centers, and camps could reopen. Nonessential travel could resume. Employers should still allow employees to telework when possible and ask them to practice social distancing. People are to avoid public gatherings of 50 or more.
In phase three, employers can “resume unrestricted staffing.” Vulnerable people should still practice social distancing.
- Stay up to date on your state’s plan to reopen.
- Prepare a plan for employees returning to work, being mindful of the availability of school and daycare services for employees’ children.
- Allow employees to telework whenever possible.
Who: All employers and employees in the United States, especially those whose work relies on Medicare, Medicaid or SCHIP
When: March 13, 2020
Due to the widespread coronavirus, President Trump announced a National State of Emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This will support states’ requests for federal financial aid related to the pandemic to cover up to 75% of the cost of medical supplies, vaccination, medical tests, and emergency workers.
The Declaration means COVID-19 is considered a “qualified disaster” under the Stafford Act and expands resources that businesses will be able to tap to assist employees who are impacted by the virus.
Employers will have access to additional assistance options to help their employees:
- Direct tax-free assistance: The financial assistance that employers give to workers will be tax-free and not treated as a salary or income. Employers can deduct the amount as a regular business expense. The amount of assistance should be reasonable and not a qualifying expense under the employer’s insurance.
- Employer-sponsored Emergency Funds that are classified as private foundations can be used as assistance in the same way that public charities can normally be used, without negative taxation. There are no requirements for any “pre-approval,” like a grant. If these expenses are properly documented, they would not be considered self-dealing and not taxable.
- Review your current business and employees’ needs and how your business can continue to support them. Work through different scenarios that may or may not require the use of the options the national state of emergency opens up.
- If your business has a private foundation, work with legal counsel to determine if those funds would be of additional help to employees in need of assistance. Prepare your business accordingly and communicate with impacted employees.
The U.S. Congress passed the Paycheck Protection Program Flexibility Act to amend the previous Paycheck Protection Program. The new changes increase the amount of time that employers have to spend loan funds to 24 weeks or to December 31, 2020.
Other changes include the rule regarding forgivable loan expenses that are spent on payroll. Under the changes, the ratio of payroll to non-payroll expenses changed to 60-40 (originally 75-25). Note: If businesses fail to spend 60% of the loan on payroll, they will still be eligible for some loan forgiveness, as long as 60% of the loan forgiveness amount is used for payroll.
Loan maturity was extended from 2 years to 5 years. Additionally, the deadline to restore full-time equivalent employees to levels from February 15, 2020 was extended from June 30, 2020 to December 31, 2020.
Additionally, the loan payment deferral period was changed to the date the lender receives forgiveness from the Small Business Administration or 10 months after the covered period’s final day if the recipient didn’t apply for forgiveness.
KPA, LLC and its partners/affiliates, collectively (KPA), has made reasonable efforts to ensure the accuracy of the subject matter presented. KPA makes no express or implied warranty with respect to the information presented and assumes no responsibility for errors or omission. This resource is designed to address compliance with federal laws; additional state laws and/or regulations may also apply. This resource should not be used as a substitute for professional or legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought.