Governor Andy Beshear has unveiled the Commonwealth’s plan to reopen the economy, called the “Healthy at Work” initiative. The first phase of the initiative, slated to begin May 11, 2020, is focused on reopening additional non-life-sustaining businesses in manufacturing, distribution, supply-chain, construction, vehicle/vessel dealerships, professional services (at 50% or less of pre-outbreak capacity), photography, horse-racing (no spectators), pet grooming/boarding, and dental offices. However, in addition to industry-specific guidance the Governor’s office has issued, all reopening businesses must meet certain minimum requirements:
- Telework. Businesses are encouraged to continue telework to the extent possible and to implement a phased return-to-work policy with generous telework and leave policies in place.
- Enforce Social Distancing. Face-to-face contact should remain minimized to the greatest extent possible. People should remain six feet apart unless required for the job functions. Businesses should restrict common areas to maximize social distancing and reduce congregating.
- Personal Protective Equipment. All employers must provide cloth masks to employees at no cost. All employees are required to wear those masks unless it would create a serious health or safety hazard or when the employee is working alone in an enclosed space. Businesses should encourage customers to wear masks and a business may refuse to serve any unmasked customer. If an employee’s job duties involve touching items often touched by others (e.g. cash, credit cards, paper, computers), the employer must provide gloves and ensure they are regularly replaced.
- Cleaning and Disinfecting Requirements. Businesses, at their own expense, must supply adequate hand sanitizer (60% alcohol content or higher), encourage handwashing, and sanitize frequently touched surfaces twice per day. If an employee tests positive or exhibits symptoms, the business should restrict access to contaminated areas, post signage, and ensure the areas are sanitized. A 24-hour access restriction is suggested.
- Mandatory Testing and Reporting. Employees must undergo daily temperature and health checks, either self-administered or conducted at the business prior to workplace entry. Sick employees should be sent home to quarantine and directed to be tested. A business must notify the health department when an employee tests positive so contact tracing can be utilized. Further guidance regarding how to conduct temperature and health checks is available at healthyatwork.ky.gov.
- Special Accommodations. To the extent possible, businesses should make accommodations for employees and customers at higher risk for severe illness (people who: are over 65, have chronic lung disease or asthma, have serious heart conditions, are immunocompromised, are severely obese, have diabetes, have chronic kidney disease and undergoing dialysis, or have liver disease).
- Healthy at Work Officer. Businesses must designate a Healthy at Work Officer who is responsible for ensuring the business’s compliance with all applicable guidance.
- Training. Businesses must educate and train all individuals, including employees, contractors, and customers on proper Healthy at Work protocols.
- Contact Tracing. Businesses must ensure that managers and employees participate in contact tracing if an employee tests positive, including answering questions from public health officials and completing the Contact Tracing Form. Businesses must ensure that managers and employees have access to the form and are trained on how to accurately complete it.
- Industry-Specific Requirements. In addition to general requirements, various industries have specific additional requirements.
Phase Two, targeting retail and houses of worship, is currently slated for May 20, 2020, and Phase Three, permitting social gatherings of ten people or less and reopening barbers, salons, cosmetology businesses, and similar services, is currently slated for May 25, 2020. For economic sectors not yet scheduled to reopen, the Governor has requested industry groups, trade associations, and individual businesses submit reopen proposals discussing strategies and challenges they face in safely reopening. These are not required. Those proposals can be submitted at https://secure.kentucky.gov/formservices/TeamKentucky/ReopenKY.
In addition to instituting appropriate measures to ensure the safety of employees and customers, employers must continue to comply with all other applicable federal and state laws, including the expanded Family and Medical Leave Act (“FMLA”) and emergency paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”), as well as other employment law statutes.
Families First Coronavirus Response Act. The emergency paid sick leave and emergency FMLA expansion remain in effect. Under the statute, employees needing time off from work for certain qualifying reasons are entitled to additional paid and unpaid leave.
Anti-Discrimination and Anti-Retaliation Pitfalls. In laying off employees, hiring employees, or deciding who to return from furlough or rehire, the employer should take care to apply fair and neutral criteria, treating all similarly situated employees the same. Further, an employer cannot retaliate against employees for requesting or taking leave under the FFCRA and should take care to carefully review and document employment decisions. With respect to at-risk individuals, the Americans with Disabilities Act, FMLA, and other disability anti-discrimination laws may provide protection that should be considered before taking adverse employment action.
Timing Requirements. All employers should comply with the governor’s timeline and reopen only when their business sector is designated to reopen. In addition, employers should ensure that any funding or loan timelines are followed. For example, loans given to small businesses under the Paycheck Protection Program (“PPP”) require the employer to restore full-time employment and salary levels by June 30, 2020, or face reduction of loan forgiveness.
Tax Considerations. Be sure to talk with your accountant about the tax implications of federal legislation and your business’s reaction. For example, employers paying for leave under the FFCRA are eligible for a tax credit. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) also provides tax benefits to employers which are forfeited by businesses that take advantage of the PPP loan forgiveness. Further, the IRS has recently made clear that expenses paid with PPP loan funds that are forgiven are not tax-deductible.
Collective Bargaining Agreements. If your business operated within the purview of a collective bargaining agreement, be sure to review provisions regarding recall rights, incentives, hazard pay or similar provisions that may augment your business operations in this context.
Returning Employees to Work. Some employees may be reluctant to return to the physical workplace after working at home or having paid or unpaid time off. Where their concerns are based on a medical condition, evaluate the availability of leave under the FMLA and applicable disability anti-discrimination laws. Where reluctance is based on more general fears of the virus, communicate the precautions in place and assurances of compliance and safety. If childcare is an issue, be sure to comply with the FFCRA’s emergency paid sick leave and expanded FMLA provisions to avoid potential interference or discrimination claims.
Training. Employees will be returning to a workplace that has undergone drastic changes from what they are used to. As a result, employers should ensure that employees understand the social distancing requirements and other expectations. Employers failing to abide by the guidelines could result in action against the employer by the Commonwealth and potentially increase the likelihood of private civil claims.
The information provided in this circulation is informational and is not intended to constitute legal advice. You should not act or refrain from acting on the basis of information contained herein without first seeking legal advice from counsel. Distribution of this pamphlet does not create an attorney-client relationship. The content is provided “as is” and no representations are made that the content is error-free.
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