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Employer COVID Toolkit

As employees come back to work and employers operate “mid-COVID” in the “new normal,” employers must update their Employee Handbook and related employment policies. BMD has put together an Employer COVID Toolkit to supplement an employer’s existing Employee Handbook and policies to ensure compliance with the Department of Labor guidance, OSHA, FFCRA, the CARES Act and state law. 

The return of the workforce brings a renewed set of documentation requirements for employers, particularly those employers with fewer than 500 employees and any companies who received PPP funds. With the ever-increasing rules, orders, interpretations, employee questions, and customer expectations, it is imperative that businesses have the necessary documents in place.

What are the necessary documents? Companies will want to have policies and forms in place to minimize the risk of liabilities and to best manage the workforce. Because of the uncertainties around the spread of COVID-19 and its testing, treatment and tracing, companies are more at risk for an extension of liability or a regulatory intervention.

What do we specifically need? And why? Keeping in mind the volatility of the laws, rules, and regulations, the safest practice is an Employer COVID set of forms and policies to include:

Return to Work Notice and Form
With furloughs, terminations, PPP loans, and expansive unemployment, employers must track which employees are refusing to return to work, as a best practice, and to extinguish any continuing obligation to the employees. Additionally, under PPP forgiveness exception rules, businesses must maintain a written record if an employee rejects a good faith return to work, the employee was fired for cause, the employee voluntarily resigned, or the employee voluntarily requested a reduction of hours.

Waiver of Liability
The state orders regarding workforce and workplace requirements can create additional duties owed to business invitees. A Waiver of Liability for customers, while not foolproof, will provide an important line of defense to frivolous lawsuits alleging COVID-19 exposure at your business.

COVID-19 Testing Consent Form
As an established precautionary measure, employers will want to engage in some testing or results review for their employees to prevent an outbreak in the workplace. For healthcare providers, this is a recommended best practice with respect to obtaining patient consent and informing patients of the risks associated with COVID-19 when seeking treatment. A Consent Form will set out the necessary parameters for testing by both employers and healthcare providers.

Childcare Leave (Summer Vacation) Form
Under the FFCRA, employees may be eligible for Emergency Paid Childcare Leave.  However, that leave is only applicable to school and care closures due to COVID-19. It does not apply to school closures due to Summer Vacations. During the summer months, employees will need to provide supplemental information regarding their requests for Childcare Leave.

Workplace Policy on COVID-19 Safety and PPE
A top question we receive from employers is “What do we do if an employee refuses to wear a mask, wash hands, keep distance, etc.?” The Workplace Policy will address the mandatory requirements and the potential for disciplinary actions.

OSHA Standards Policy
More and more groups are calling on OSHA to implement COVID-19 safety standards beyond the General Duty Clause. As OSHA introduces federal requirements, employers must be able to implement and adapt through an OSHA Standards Policy.

Internal COVID-19 Reporting Form
When two or more employees raise a concern about workplace safety, they are arguably engaging in a “protected concerted activity” protected by the NLRA. The number of retaliation, whistleblower, and public policy claims are on the rise. It is prudent and imperative for employers to have reporting policies and procedures in place, document and investigate any COVID-19 concerns of the employees and prevent retaliation to avoid the potential claims.

Away from Workplace COVID-19 Policy
This is another major concern for employers. Even if employees are monitored at work, what can stop them from engaging in risky behaviors away from work? An off-duty conduct policy isn’t fail-safe, but it will help set expectations for employees’ actions away from work that may affect the workplace. If employees travel to hot-spot areas, or party with large groups of people, that creates risk for the employer and coworkers, and this Policy announces the employer’s right to restrict the employee from returning to work until safe from exposure.

If you need assistance with any or all of these recommended Employer COVID Policies and Forms, please contact Jeffrey C. Miller at 216.658.2323 or jcmiller@bmdllc.com or Amanda L. Waesch at 330.253.9185 or alwaesch@bmdllc.com or your attorneys with Brennan Manna & Diamond. An Employer COVID Toolkit will be offered to existing L+E Advisory and Healthcare Advisory clients.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.

FCC Adds $198 Million to Strengthen Telehealth for Rural Healthcare Providers

The Federal Communications Commission (“FCC”) has added an additional $198 million in funding to its Rural Health Care Program. These funds will be used to increase broadband services and telecommunications to bolster telehealth/telemedicine services for rural healthcare providers. Funding for rural healthcare providers was initially capped at $605 million in 2020, but the added funds will now allow the FCC to provide over $800 million to eligible providers.

Finding Opportunity in Adversity: Optimism for the Construction Industry

Looking for good news? If so, you are not alone. Aside from the collective mental, physical and emotional human toll imposed by the COVID-19 pandemic, entire sectors of the economy have been ravaged, and old, familiar ways of doing business have been disrupted. Although deemed essential, the construction industry has not been immune to interruption and uncertainty during these unprecedented times. Amid new health and safety concerns, coupled with financial uncertainty, progress on projects has slowed, and the start dates for a number of new projects slated to begin in 2020 have been deferred. However, resilience has always been a trademark of contractors, subcontractors and other industry professionals. Reports indicate that while the construction industry lost more than one million jobs February through April, at least 600,000 of those jobs had been gained back by the end of June.

Yard Sign Do’s and Don’ts: How to Avoid Legal Challenges to Municipal Sign Codes this Election Season

As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality.