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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.

Bankruptcy Law Changes - 2020 Recap And What To Expect In 2021

In a year of health challenges and financial distress to many individuals and businesses affected by the pandemic, the year 2020 brought some significant changes to the bankruptcy laws. Some of these changes were in place prior to the pandemic; others were a direct response to the pandemic with the goal of helping struggling businesses and individuals. Ahead, we can likely expect further changes to the Bankruptcy Code with the incoming Congress.

UPDATE - SBA Releases Rules and Guidance for Second Round PPP Funding

Late yesterday (January 6, 2021), the U.S. Small Business Administration released rules and guidance for businesses wishing to take part in the long awaited second round of Paycheck Protection Program (“PPP”) funding. As most businesses are aware, the rules governing PPP loans have been updated as part of The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (“Act”). The Act was just one section of the massive 2021 Consolidated Appropriations Act that was passed by Congress and signed into law by the President on December 27, 2020. To combat the ongoing disruptions caused by the COVID-19 pandemic, the Act generally provides (a) first time PPP loans for businesses that did not obtain a loan in the first instance, (b) PPP second draw loans for businesses that already obtained a loan but need additional funding, and (c) additional funding for businesses that returned their first PPP loan or did not get the full amount for which they qualified.

UPDATE - Vaccine Policy Considerations for Employers

If you read our post from November, you’re already an informed employer. This first post of 2021 is to share good news, give a few updates, and answer some other common questions. Q: What’s the Good News? First, the EEOC confirmed that employers may require employees receive the COVID-19 vaccine. Second, polling indicates that the number of Americans who said they will receive a vaccine has increased from around 63% to over 71%. The number of Americans who are strongly opposed to a vaccine is about 27%. Third, initial returns show that the efficacy rate for certain vaccines is as high as 95% for some at-risk recipients.

Changes to FFCRA Paid Leave: Congress’ Revisions to Employment COVID-19 Leave Benefits Signals the Light is at the End of the Tunnel

Late in the evening on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic stimulus benefits, the Stimulus Bill contains the $600 stimulus checks that will be issued to eligible individuals as well as, relevantly, changes to the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was implemented in April 2020 and provided benefits to individuals who missed work as a result of an actual or suspected COVID-19 illness or to care for a child when their school or childcare service was closed because of COVID-19. Importantly, the Stimulus Bill extends eligibility for employer payroll tax refunds for leave payments made to employees on or before March 31, 2021 under the FFCRA, signaling to the American people that Congress believes many of the employed public will be vaccinated by this time, the light at the end of the tunnel. However, the Stimulus Bill does contain a caveat that employers are no longer required to provide FFCRA leave benefits after December 31, 2020, but if they do, they will receive the payroll tax credits, up to the maximums provided in the FFCRA, for payments made prior to April 1, 2021. Below we provide a list of questions and answers we received to date following the passage of the Stimulus Bill. We expect the U.S. Department of Labor (“DOL”) to issue additional questions and answers as the Stimulus Bill is implemented, and we will update this Client Alert as these are received.

Healthcare Speaker Programs: New OIG Alert

In a rare Special Fraud Alert issued on November 16, 2020 (the “Alert”), the Office of Inspector General (“OIG”) urged companies who host speaker programs to reassess their programs in light of the “inherent risks” associated with these activities. The Alert reports that, in the last three years, drug and device companies have reported paying nearly $2 billion to health care professionals for speaker-related services.