Screening Compliance Update—COVID-19 Edition

Screening Compliance Update—COVID-19 Edition

It’s likely an understatement to say that the coronavirus pandemic has knocked the business community for a loop. The fast-moving and ever-changing variables are difficult to navigate while trying to balance safety and productivity. With employers creating (and scrapping and re-creating) return-to-work plans in search of a sustainable way of business going forward, I thought it would be helpful to put together a special COVID-19 edition of our monthly Screening Compliance Update for this month’s For The Public Record blog. I hope it proves helpful in understanding the issues and creating a comprehensive business response in these unprecedented times.

COVID-19 Reopening Plans

Introduction
Reopening, just like the restrictive measures originally put in place in or around March 2020, has been taking place on a state-by-state basis. In May 2020 and June 2020, all 50 states began to reopen in some way after implementing lockdown restrictions. Many states that have instituted reopening measures have adopted a phased approach, electing to reopen industries at different rates.

States have imposed their own obligations on employers as part of their reopening plans, in keeping with guidance provided by the Equal Employment Opportunity Commission (EEOC), a federal agency tasked with enforcing federal anti-discrimination laws, and the Centers for Disease Control and Prevention (CDC). Employer requirements and best practices depend on the employer’s locations of operation and type of business but, at a high level, there are general trends with respect to state-imposed employer obligations, including:

  • maintaining safe working conditions and monitoring employee health;
  • undertaking sanitizing efforts;
  • requiring the use of personal protective equipment; and
  • promoting telework.

Maintaining Safe Working Conditions and Monitoring Employee Health
Many if not all states that have provided employer guidance require employers to take daily health checks or test employees. In many states, employees may be able to self-screen for symptoms at home, provided that they verify with their employer that they have no COVID-19 symptoms on entry to the workplace. Should an employer opt to take employees’ temperatures on entry to the workplace, testing must align with the confidentiality requirements and protections set out in the Americans with Disabilities Act (ADA).

Under the ADA, information gleaned from symptom screenings must be maintained as a confidential medical record. Although taking an employee’s body temperature constitutes a medical examination, the EEOC has stated that employers may do so because of COVID-19’s community spread. Further, the EEOC has also cautioned employers that the ADA requires medical information about employees to be stored separately from their personnel file; COVID-19-related medical information may be stored in existing medical files. Employers must also keep daily temperature checks confidential. However, an employer may disclose the identity of an employee that has contracted COVID-19 to a public health agency.

Maintaining safe working conditions also requires employers to keep workplaces free from discrimination. To that end, the EEOC has advised employers that it may be helpful to communicate to their workforces that fear, anger and frustration caused by the COVID-19 pandemic should not be misdirected against individuals based on a characteristic protected by federal anti-discrimination laws (i.e. race, national origin, color, sex, religion, age, disability or genetic information). The EEOC recommends employers communicate to their workforce that claims of discrimination or harassment will be reviewed promptly and appropriate action taken as quickly as possible. It also suggests that managers be alert to demeaning, derogatory or hostile remarks directed at employees who are or are perceived to be of Chinese or other Asian national origin, including about COVID-19 or its origins.

Undertaking Sanitization Efforts
States that have provided reopening guidance for employers also require that employers maintain clean workplaces in keeping with CDC sanitization guidance. The CDC has provided a general framework based on:

  • creating and implementing a normal routine of cleaning with soap and water (including encouraging employees to routinely wash their hands and providing hand sanitizer and soap in the workplace); and
  • disinfecting the workplace using Environmental Protection Agency-approved cleaners known to work against COVID-19, including frequent disinfection of surfaces and objects touched by multiple employees (e.g. cash registers, phones, door handles and countertops).

Almost all states require employers to develop, disseminate and implement a plan that details how to clean and disinfect high-traffic areas. The plan should include how to clean and disinfect areas in the event that an employee with COVID-19 symptoms has worked in the workplace, as well as protocols to be followed by potentially exposed employees.

Requiring Use of Personal Protective Equipment
Particular requirements on the use of personal protective equipment vary by state and industry. Many if not all states require the use of a mask or other face covering when employees are in the workplace and cannot maintain proper social distancing (i.e. six feet or 1.83 meters distance). Further, employees in certain businesses (e.g. retail) must wear a mask or face covering and gloves when interacting with customers.

Promoting Telework
All states have advised employers to encourage teleworking where possible, even at more advanced reopening phases.
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Making Employees Sign a COVID-19 Waiver is a BAD Idea
What we know about COVID-19 has evolved so much over the past five months, forcing companies to be nimbler than ever to protect themselves from coronavirus-related liability. But, amidst this change, one unfortunate constant has emerged: employers continue to ask employees to sign waivers of liability to mitigate the risk if an employee later contracts COVID-19 and sues.

Stop it!

We neither recommend nor draft these waivers, whether for essential businesses that have been open since March or nonessential businesses that are just bringing their employees back to the workplace. Why? For one simple reason: they are ineffective and likely to do more harm than good.

Waivers won’t bar workers’ compensation claims.
The main reason such waivers don’t work is because the sole remedy for most work-related claims falls under a state’s workers’ compensation statute. In other words, an employee may not sue the employer directly for damages, effectively creating a workers’ compensation bar blocking lawsuits over job-related illnesses. Instead, workers receive limited benefits.

For example, in Maryland, the state’s workers’ compensation law includes occupational disease coverage, and, accordingly, COVID-19 is likely to be a compensable workplace illness.

Other states, like California, have established rebuttable presumptions that certain workers with COVID-19 can pursue claims for workers’ compensation unless the employer can prove the employee contracted the virus outside of work.

In some states, like New York, an injured employee may avoid the workers’ compensation bar if the employee can show “an intentional or deliberate act by the employer directed at causing harm to this particular employee.”[1] Failing to follow proper workplace safeguards under federal and state-recommended guidelines may permit employees in jurisdictions like New York to avoid the exclusivity bar that workers’ compensation coverage otherwise would provide.

While at least ten states already have enacted laws providing some form of immunity for businesses from lawsuits brought by employees and others who contract COVID-19, for many, they only apply if the company is taking safety precautions.

Waivers won’t avoid gross negligence and intentional tort claims either.
A workers’ compensation bar does not prohibit claims for gross negligence or intentional tort claims, and employee-side lawyers are testing these theories during the COVID-19 pandemic.

While workers’ compensation statutes bar most injury claims, if an employer knowingly exposes a worker to COVID-19, the employee may have a general tort liability claim against the company. For example, after one employee contracted COVID-19 and died, his estate sued the corporate employer, alleging that the store knew there were sick employees in the workplace, failed to isolate them, did not properly disinfect the store, and failed to follow federal public health guidelines to prevent spread of the disease.

In another case, the employee is suing for a court order to require compliance with federal safety guidelines, alleging that the company failed to provide sufficient PPE, failed to allow for social distancing, encouraged employees to come to work even when sick, and failed to implement procedures for preventing sick employees from entering the workplace.

A deterrent effect?
But, won’t a signed COVID-19 waiver make an employee think twice about suing?

Probably not, and here’s why: In most states, an employee cannot preemptively waive work-related claims—any such waiver would be unenforceable and void. Indeed, that signed waiver could be Exhibit “A” for a savvy employee-side lawyer to show a jury that the business is evading (or trying to evade) its duty to provide a safe workplace.

Furthermore, these “exculpatory” waivers may violate public policy due to the unequal bargaining power of the parties. Many courts consider exculpatory waivers in the workplace to violate states’ public policy. For example, in North Carolina, the law disfavors contracts “exempting persons from liability for negligence” and strictly construes them against the drafter,[2] yet courts can strike these otherwise valid exculpatory waivers when the clause “violates a statute, is gained through an inequality of bargaining power, or is contrary to a substantial public interest.”[3]

Indeed, North Carolina courts have stricken exculpatory waivers for motorcycle-training classes and cosmetology courses; therefore, it’s hardly a stretch to conclude that a court would do the same for those involved in other such industries, even education. Therefore, employers should not expect to be able to enforce a COVID-19 waiver against employees.

The Answer: Safety Measures
Right now, the best way to defend a wrongful death, negligence, or other general tort lawsuit is to prevent it. Some prudent workplace safety practices for employers:

  • Follow the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Here are the CDC’s top 10 tips. Send employees with confirmed cases home until released by a medical professional or until they meet the guidelines for discontinuing self-isolation, providing the employee with any required federal, state, or local leave, or paid time off provided in your employee handbook.
  • Ensure that employees are provided and properly wearing masks and other personal protective equipment.
  • Educate your employees and communicate. Remind employees of the symptoms of COVID-19 and urge them to seek medical attention if symptoms appear. Check in with isolated sick employees. An employee with whom you engage will be less likely to litigate against their employer.
  • Err on the side of transparency when an employee contracts COVID-19 by informing other employees of a confirmed case of COVID-19 in the workplace (without mentioning the name of the infected employee; see our Client Alert regarding this privacy concerns here). The CDC recommends that employers notify potentially exposed co-workers of confirmed cases. Though there is no law on this yet, OSHA may ultimately determine that a failure to notify employees of a confirmed COVID-19 case is a violation of OSHA’s general duty clause, the agency’s generic requirement to maintain a safe work.
  • Finally, instead of a waiver, consider asking employees to execute an acknowledgment that they will comply with workplace safety measures and otherwise take reasonable steps to avoid the transmission of COVID-19.

The takeaway here is simple: proactive employers better protect themselves and their workforces by mitigating risk with detailed safety and communication plans and procedures communicated to employees.
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COVID-19: Quick State by State Reference Tool Regarding Reopening in New England States
Last updated August 4, 2020

In response to the COVID-19 pandemic and its threat to public health from in-person contact, every state in New England issued orders closing or otherwise limiting business operations. As more is known about the spread of the virus, states have developed phased plans to reopen their economies. A summary of the current key orders and various reopening plans is outlined below.

Please note that orders are often extended only shortly before they are set to expire.

CT ME MA NH RI VT
State of Emergency Declared March 10 March 15 March 10 March 13 March 9 March 13
State of Emergency Duration Sept. 9 August 6 Until rescinded August 7 Sept. 2 August 15
Price Control Order in Effect Yes Yes Yes N/Aβ Yes Petroleum and heating fuel onlyβ
Current Phase of Reopening (Start Date) Phase II (June 17) Phase III (July 1) Phase III, Step 1 (July 6) Phase II (May 1) Phase III (June 30) Phase VI (May 15)
In-State Movement Restriction Expired, but

recommended

Yes, but relaxed Expired, but

recommended

Expired, but recommended Yes, for vulnerable populations Yes, but relaxed
Cross-Border Travel Restriction† 14-day quarantine or negative test if from hotspot 14-day quarantine or testing (CT, NY, NJ, NH, and VT exempt) 14-day quarantine or negative test unless from low risk state None** 14-day quarantine or negative test if from hotspot 14-day quarantine or 7-day and negative test (except for counties in certain states)
Masks or Coverings in Public* Required Required Required Recommended Required Required for public transportation¥
Essential Services List Yes Yes Yes Yes Critical retail Yes

β relief available under state’s consumer protection laws †see our alert on travel restrictions for additional requirements and exemptions **compliance with CDC guidance recommended *where other physical distancing measures are difficult to maintain ¥municipalities may enact more strict local requirements regarding mask use

Connecticut
On April 23, Governor Lamont announced a Reopen Connecticut Advisory made up of local health, business, and education experts to consult with the administration and legislative leadership with respect to reopening of the state’s economy and schools. Phase 2 of Connecticut’s reopening began on June 17, permitting reopening of additional businesses in accordance with relevant guidance (updated as of July 29), including:

Order 7ZZ outlines this and other guidance, including relaxation of restrictions from Phase 1. In Phase 2, restaurants may operate at 100% outdoor and 50% indoor capacity, pursuant to sector-specific rules, with rules from Order 7N regarding takeout and delivery remaining in place. Bar seating is permitted in certain circumstances, but bars remain closed. Social clubs must follow all rules applicable to the specific operation, such as restaurants and pools. Phase 2 also includes revised guidance for museums, zoos, and aquariums and for indoor events. Effective July 24, fairs, festivals, and carnivals may operate at 25% capacity of last year’s attendance.

Limits on indoor private gatherings remain at 25 people, and 100 for outdoor private gatherings, although organized outdoor gatherings (such as concerts) may have up to 500 people, but must maintain 15 feet of space “blanket to blanket,” in addition to the continued observance of the social distancing between groups required for other outdoor events.

Also still in place are the restrictions on religious worship from Order 7TT limiting gatherings to 25% of capacity or up to 100 people indoors or 150 people outdoors, except for drive-in services (Order 7XX), and essential business rules from Order 7PP are extended for the duration of the emergency unless otherwise modified. Guidance for other businesses open from Phase 1, including offices and retail & malls, has also been updated.

The “safe workplaces” guidance (Order 7V) for all essential businesses remains in effect unless a business is otherwise subject to sector-specific rules. Guidance on rules for essential businesses is available here, and here for essential retailers. General business rules are available here. All businesses subject to Phase 1 and Phase 2 reopening rules that did not already certify during Phase 1 must self-certify compliance with safety guidelines prior to opening.

Trails and state parks are also open (Order 7R), and state campgrounds began a phased opening on July 1.. Beaches are partially open, subject to guidance from individual towns. Summer camps were permitted to open effective June 22, with youth camps limited to a group size of not more than 14 (Order 7Q). For childcare, the limit on group size is now also 14, and health screening procedures have been updated to no longer require temperature screenings for children and staff. Order 7AAA requires COVID-19 testing for staff of private and municipal nursing home facilities, managed residential communities, and assisted living services agencies. Guidance for healthcare providers is available here.

Please refer to our alert on travel requirements for quarantine and travel guidance. Connecticut’s state of emergency and price controls for designated goods are currently in effect through September 9, 2020.

Maine
On April 29, Order 49 incorporated by reference Governor Janet Mills’ four-phased Restarting Plan, to be based on calendar months in order to allow for time to assess the effectiveness of the precautions put in place and provide a predictable timeframe for the impacted businesses. Notably, the phases of reopening are not based on essential versus non-essential designations, but instead will focus on easing restrictions based on health and safety considerations.

Phase 3 began on July 1 and will run through August. On June 22, Governor Mills announced that indoor bar service would not resume as scheduled on July 1 in order to protect public health. In addition to guidance in place from previous phases, outlined below, Phase 3 permits the relaxing or opening of:

Updated guidance on large social gatherings is available here, and here for public and community buildings. Currently, Phase 3 maintains the prohibition on gatherings of more than 50 people.

Order 55 clarified that places of business accessible to the public must post signs notifying customers of the requirement to wear cloth face coverings where physical distancing is not possible and also allows businesses to deny entry or service to a person not wearing a mask. Governor Mills signed a new order to strengthen previous mask-related orders, mandating that businesses require face coverings in retail stores with more than 50,000 square feet of shopping space, in restaurants, outdoor bars, or tasting rooms, and in lodging establishments. Further, municipalities may enforce the use of face coverings on streets, sidewalks, parks, and other public spaces where individuals are not able to maintain at least six feet of physical distance. More information is available here.

Otherwise still in place is the guidance from Phase 2, which began on June 1 via Order 55. All essential businesses and businesses that opened in Phase 1 could remain open in Phase 2, and Phase 2 permitted employees in legal and professional fields to return to offices, including State employee, as well as the following openings or relaxations of prior restrictions (with links to updated sector-specific guidance):

Our alert about changes to restaurant and retail guidance is available here and here for town meetings.

Unless modified by Phase 2, all restrictions from Phase 1 remain in place. Some sector-specific guidance, below, from Phase 1 has been updated as of July 15. Phase 1, which started on May 1, required construction firms to deploy additional PPE, reduce the size of work crews, and stagger shifts to minimize interaction between teams. Updated guidance for in-home services, including electricians, plumbers, cleaners, and installers, is available here. With appropriate safety precautions, including maintenance of 6 feet of physical distance and the wearing of masks where such distance cannot be maintained, the following businesses were also allowed to open (with links to updated sector-specific guidance):

Our alert on the business checklists can be found here, and our alert on the reopening plan can be found here.

Please refer to our alert on travel requirements for quarantine and travel guidance. Maine’s state of emergency and price controls are currently in effect through August 6, 2020.

Massachusetts
On May 11, Governor Charlie Baker announced a four-phase plan for reopening, including new workplace standards. Our write-up of this reopening plan is available here. Governor Baker stressed that decisions and timing will be influenced by public health metrics, and that if metrics fall below thresholds, the state may move back to a prior phase.

Governor Baker’s Order 43 moved Massachusetts into Phase 3 of the Reopening Plan. Phase 3, like prior phases, has two steps, with Step 1 of Phase 3 in effect as of Monday, July 6 for brick and mortar premises outside of Boston, and July 13 for those located in Boston. The businesses that may reopen in Phase 3 are listed in Schedule A to Order 43, amending the previous version from Order 37. The following businesses reopened in Phase 3 Step 1, subject to industry-specific rules concerning capacity and operations:

Per Order 45, employers should take measures to ensure employees comply with all state-issued travel rules for out of state travel, and employers are discouraged from requiring or allowing out of state travel to or from non-low risk states. Lodging operators are required to inform guests of the current travel guidance. Our alert on the new travel order, effective August 1, is available here.

Governor Baker also issued a revised gathering order, Order 44, replacing Order 38, which limits indoor gatherings to eight people per 1,000 square feet, not to exceed 25 people in a single enclosed, indoor space. Outdoor gatherings in enclosed spaces are limited to 25% of the facility’s maximum permitted occupancy, with a maximum of 100 people in a single enclosed outdoor space. Our write up of Phase 3 and these orders is available here.

Phase 2 began on June 8 via Order 35 and Order 37. Step 2 of Phase 2 began on June 22 with the issuance of Order 40. Our summary is available here. Safety standards and checklists that remain in place, unless amended by Phase 3 guidance (reflected in updated links), include the following:

  • Restaurants: limited indoor dining
  • Offices: capacity increased in Phase 3 to 50% of building’s maximum occupancy, with no enclosed space to exceed 10 people per 1,000 sq ft, but employees must continue to telework where feasible, particularly in more densely populated areas like Boston
  • Close contact personal services, including massage, nail, piercing, and tattoo salons, and personal trainers (appointment-only with only one customer or two from the same household at a time)
  • Lodging
  • Libraries
  • Golf facilities (outdoor only) and retail businesses

The previously-developed mandatory safety standards are still applicable to all sectors and industries, and include guidance on social distancing, hygiene protocols, staffing and operations, and cleaning and disinfecting. Governor Baker has also issued an Order authorizing re-opening preparations for child care programs. The Essential Services list, updated on April 28, remains current and in effect.

Since May 25, the following businesses have been able to operate (with links to sector-specific guidance): Laboratories and additional health care providershair salonspet grooming, and carwashesbeachespools, and drive-in theaterscampgrounds, and parks and outdoor space, including athletic fields and courts, community gardens, outdoor education and art installations, recreational and for-hire and charter boating, and zoos.

Order 33 launched Phase 1 of the Reopening. Places of worship were permitted to reopen and must continue to operate in accordance with continuously updated safety guidance, including occupancy limits. Essential business already operating were required certify compliance with safety standards by May 25, and new guidance continues to be issued for manufacturing and construction operations. Further, hospitals and community health centers could, upon attestation, resume offering some of their services.

Otherwise still in effect is Governor Baker’s initial Order regarding continued operation of essential services, which orders all businesses with “brick and mortar” premises to operate only by remote means unless they are designated as essential or permitted to open through the orders described above.

Please refer to our alert on the current travel requirements for quarantine and travel guidance in New England and our alert on the Commonwealth’s the new travel order, effective August 1. Massachusetts’s state of emergency and price controls are in effect until rescinded by the Governor.

New Hampshire
On March 27, New Hampshire became the last state in New England to issue a closure order with Emergency Order 17, which required all businesses not identified as providing “essential services” to close their physical workspaces to facilities, workers, customers, and the public, and cease all in-person operations.

On June 15, Governor Chris Sununu announced, via Order 52, modifications to the state’s revised stay at home order. Order 52 requires all businesses operating in the state to comply with the universal guidelines in the order’s Exhibit A and the industry-specific guidelines of Exhibit B. These guidelines require employers to develop a process of screening all employees reporting for work for COVID-19 symptoms, to promote hygiene and implement workplace cleaning and disinfection practices and requires employees to wear masks or cloth face coverings. Businesses in need of disposable masks may submit a form to request masks at no cost from state. Order 52 will be in effect until August 7.

As of May 1, state parkspublic and private campgrounds, and manufacturing were permitted to open (with links to updated guidance for each. On May 4, certain healthcare services were permitted to resume services, and as of that date, the following industries were able to phase-in or expand services (with guidance updated, as applicable): retail storesdrive-in movie theaterspublic and private golf coursesbarbers and hair salons, and dentists.

Phase 2 updates already in place include those for driver’s educationplaces of worship, and lodging. Additional guidance for new or relaxed operations, effective June 15 or later (most recently updated on June 29), include:

Additional updated guidance is available for the following: adult day servicesamusement parksarts and music educationfairs and festivalsmovie theaters, and performing arts venues.

Also currently open, with updated guidance as of July 17, are outdoor attractionschild careequestrian facilities, and amateur and youth sports (including athletic leagues and team training). As of June 1, beaches and additional personal services could begin operations, including acupuncturebody artcosmetology, and massage. Note that the guidance for beaches includes state and town-specific guidance and outlines enforcement coordination. All sector-specific guidance is in addition to the state’s universal guidelinesCDC guidance for business and employers, and CDC guidance for cleaning and disinfection. Numerical limits on gatherings have also expired, except as contained in the sector-specific guidance.

Please refer to our alert on travel requirements for quarantine and travel guidance. New Hampshire’s state of emergency is currently in effect through August 7, 2020.

Rhode Island
Rhode Island entered Phase 3 of its Reopen RI Plan on June 30 via Order 20-50, continued via Order 20-58. The Order reduces indoor and outdoor social gathering limits from 25 to 15 people, although restaurants and licensed catering events may have up to 50 people indoors and up to 100 outside. Subject to social distancing, masking, and other health and safety protocols, indoor and outdoor venues can operate at 66% of capacity or 1 person per 100 square feet, up to a cap of 125 people. Outdoor venues have the same restriction, except a larger cap of 250 people.

The following updated sector-specific guidance is also in place, some of which is included in the recent order:

  • Religious and faith-based organizations: indoor occupancy limited to lesser of 66% of maximum permitted occupancy level or the number of persons who can maintain physical distance when seated, subject to a cap of 125 people (except outdoor services, capped at 250 people) (see separate guidance for Funeral Homes)
  • Gyms and fitness centers: limited to one person per 100 square feet, with physical distancing guidelines and cleaning protocols
  • Retail: generally limited to one customer per 100 square feet of store area open to customers
  • Restaurants: indoor dining limited to 66% of regular seating capacity with table spacing requirements, with outdoor dining encouraged as long as the restaurant does not service more than its normal operating capacity; bars open for seated service only
  • Personal services (including hair salons, massage, nail salons, tanning and tattoo parlors, and estheticians): capacity limited such that each client/professional pair can maintain 6 feet of distance between other pairs, up to one customer per 100 square feet
  • Offices: up to 66% capacity as long as physical distancing can be maintained, with work from home still strongly encouraged when possible
  • Residential realtors: no more than 1 person per 100 square feet of floor area per open house event

Highlights of Phase 3 guidance are available here. Also currently open, with updated guidance for Phase 3 are: state parks and beaches, open with capacity limitations and social distancing restrictions (additional guidance for parks and campgrounds), outdoor activities (including pools and lifeguardsmarinas and charter boatsyouth and adult sports, and farmer’s markets), casinosrecreation and cultural activities (including golf, museums, arcades, and zoos, among others), and child care services . Guidance for cooling centers is available here. Visitation continues to be restricted for nursing homes and assisted living facilities. Guidance on communal living for seasonal workers is available here and youth congregate care settings here.

As part of the state’s reopening, all businesses, including those that are currently operating, are required to develop a written COVID-19 Control Plan outlining how their workplace will prevent the spread of COVID-19. Order 20-35 introduced guidance for summer camps (extended through August 19 via Order 20-54), including a limit of 15 people consisting of up to 14 campers. Rhode Island has also issued Back to School guidance for elementary and secondary schools and for adult classes.

Still in effect, unless supplemented by Phase 2 or 3 guidance, are the restrictions from Phase 1, which began on May 9 pursuant to Order 20-32, as are the general business guidelines from Phase 2. In the first phase, the stay at home order was lifted, but everyone who can work from home is encouraged to do so through Phase 3. Elective medical procedures also resumed under applicable safety guidelines.

Order 20-60 again extended the requirement for wearing cloth face coverings in public (Order 20-41), and the state’s declaration of emergency.

Please refer to our alert on travel requirements for quarantine and travel guidance. Rhode Island’s state of emergency and price controls are currently in effect through September 2, 2020.

Vermont
Phase 6 of the state’s Restart began on May 18 and allowed for limited resumption of retail operations not deemed critical under the initial Stay Home/Stay Safe order. Addendum 16 relaxed restrictions on large gatherings and close-contact businesses as of June 1, including gyms and fitness centers, nail salons and spas, and tattoo parlors. Campgrounds and marinas may operate at 100% capacity following health and safety practice and in accordance with the state’s travel and quarantine requirements.

All open businesses must comply with the state’s health and safety requirements, including observing social distancing on the job to the extent possible, wearing face coverings, and screening workers at the beginning of each shift.

Restaurants must allow for 6 feet of distance between seated parties, with bar seating remaining closed, and customers required to be seated while consuming food or beverages. Indoor dining has been permitted since June 8. Restaurants are also required to maintain log of customers and their contact information for 30 days in the event contact tracing is required by the Health Department.

Restaurants and indoor venues for arts, culture and entertainment can expand capacity for events and dining to 50% of approved occupancy size or one person per 100 square feet of customer-facing space, up to a maximum of 75 people indoors and 150 people outdoors. This relaxation of indoor and outdoor gathering size applies to all sectors, including low or no contact professional services, lodging and camping, social clubs, outdoor recreation, and social gatherings generally. Event venues, including large outdoor venues for sports or concerns may be able to exceed the 150 maximum limit by creating multiple distinct event locations that meet the event criteria, provided that the distinct locations are separated by a physical barrier and have separate parking, concessions, restrooms, and entrances and exits. Banking and non-essential retail operations may operate at the greater of 50% capacity, 1 customer per 200 square feet, or 10 total customer and staff combined.

Addendum 2 to Order 01-20, effective August 1, requires masks or cloth face coverings in public spaces, indoor and outdoor, wherever close contact of less than 6 feet is unavoidable. Businesses must make customers aware of this requirement and may decline entry or service to customers who do not wear masks or facial coverings. This order is applicable to all businesses unless alternatives are provided for in specific circumstances by sector specific guidance.

Hair salons and barber shops are subject to a capacity limit equal to the greater of 25% capacity, 1 customer per 200 square feet, or 10 total customer and staff combined. The same restrictions are in place for other close contact personal services, as well as gyms and fitness centers, which also have a limit of 25 people in any single, distinct indoor space. Religious facilities and places of worship are open, subject to physical distancing either by limiting capacity to 50% or 1 person per 100 square feet, and interior residential and commercial construction may occur in occupied structures. Guidance has also been issued for the following:

Additional updates to the state’s Be Smart, Stay Safe order are posted here. A quick-look of open businesses is available here. On July 29, Governor Scott also signed a directive regarding school reopening.

While remote work is still required wherever possible, low or no contact professional services may operate at limited capacity, with banks required to follow additional guidance. Also still in effect is Addendum 12, which permits crews of up to 10 employees per job location to perform outdoor and construction work, allows manufacturing and distribution operations to resume with up to 10 employees in any location if they adhere to social distancing, and for previously closed manufacturing, construction, and distribution operations to restart with as few employees as necessary to permit full operations. An amendment to Addendum 3 began the phased restart of elective medical and surgical procedures as of May 15 in accordance with the standards set out in Addendum 3.

Outdoor recreation businesses with low or no direct physical contact are also open, including state and municipal parks, recreation associations, trail networks, golf courses, big game check stations, and guided expeditions. Beaches are only permitted to open if they can comply with general guidance for outdoor recreation businesses and facilities.
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US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees
As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e. employees who are at an increased risk for severe illness from COVID-19. Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape. As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  1. The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA. While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing the employee from attending group meetings/gatherings, and reconfiguring the employee’s workspace. It is important that employers not act unilaterally with respect to implementing accommodations. Instead, the interactive dialogue process should be used early on to identify what, if any, accommodations an employee may need and/or receive. As a reminder, employers’ ADA accommodation obligations do not extend to situations in which an employee’s family member (rather than the employee him or herself) is high risk.
  2. The Age Discrimination in Employment Act (“ADEA”): Regardless of any underlying medical condition, older employees may also qualify as “high risk.” Notably, while the CDC has identified “older” employees as those aged 65 and older, the World Health Organization and some experts have identified those aged 60 and older as being “high risk.” Regardless of which age cutoff an employer uses, unlike obligations under the ADA, employers are not required to provide older workers with an accommodation. However, the EEOC has made clear that employers are permitted to provide flexibility to older high risk employees, even if such flexibility results in younger workers ages 40-64 being treated less favorably based on age in comparison. As with accommodations under the ADA, employers should not act unilaterally in providing this flexibility; in other words, employers should not involuntarily exclude older workers from the workplace on the grounds that they are at high risk of serious illness from COVID-19. Instead, older workers should be permitted to voluntarily participate in any flexibility offered.
  3. The Family and Medical Leave Act (“FMLA”): If an employee is incapacitated as a result of a serious health condition, which may include complications from COVID-19, he or she may be eligible for FMLA leave. However, if an employee is not incapacitated, and instead requests leave in order to avoid potential exposure to COVID-19, he or she is likely not entitled to FMLA leave.
  4. The Families First Coronavirus Response Act (“FFCRA”): The FFCRA provides eligible employees with paid and unpaid leave for certain COVID-19 related absences. With respect to high risk individuals, if an employee is advised by his or her health care provider to self-quarantine due to being high risk or if an employee must care for someone else who has been advised to self-quarantine due to being high risk, the employee may be entitled to up to 80 hours of paid sick leave under the FFCRA.
  5. Occupational Safety and Health Act / National Labor Relations Act: Both of these laws provide anti-retaliation protections for employees who raise certain concerns about their working conditions. As such, it is important to remember that a high risk employee who expresses concern about returning to work, safety measures, and/or other COVID-19 related matters, may be engaging in protected activity and cannot be retaliated against for doing so.
  6. State and Local Laws: In addition to state and local anti-discrimination laws, employers should also familiarize themselves with applicable state and local leave laws (including paid sick leave laws) and reopening orders. These laws or orders may require employers to provide high risk employees with certain amounts of leave or other accommodations, as well as to develop and distribute COVID-19 response plans, which may address risks for high risk employees. Especially with respect to state and local reopening orders, this guidance is continuing to evolve on an almost daily basis. As such, continuous monitoring of these orders should be incorporated into employers’ reopening plans.

Regardless of legal obligations, the best way to manage any employees’—and in particular, high risk employees’—return to work is to maintain clear and open lines of communication. Employers should be prepared to explain to employees the steps they have taken to reduce the risk of COVID-19 exposure in the workplace and educate employees on key COVID-19 related matters, including CDC/OSHA guidance, COVID-19 symptoms, and relevant employer policies.
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Michigan Governor Updates Reopening and Workplace Safety Executive Orders
On July 29, 2020, Michigan Gov. Gretchen Whitmer signed Executive Orders 2020-160 and 2020-161. EO 2020-160 reaffirms many of the prior restrictions while tightening some, and permits the opening of casinos and racetracks, effective Aug. 5. EO 2020-161 is an amended version of EO 2020-145 and adds provisions relating to safety protocols for casinos and racetracks upon reopening.

EO 2020-160 made the following changes:

  • Indoor sport venues, cinemas and entertainment facilities are closed, but there are exceptions for certain indoor venues, including cinemas, in Regions 6 and 8 (the Traverse City Region and the Upper Peninsula) (click here to see a map of the Regions)
  • Licensed casinos and racetracks may be open on Aug. 5, 2020, subject to the rules on workplace safeguards prescribed in EO 2020-161.
  • The number of people that can be in a gathering or event is limited as follows:
Regions 1, 2, 3, 4, 5, and 7 Regions 6 and 8
Indoor 10 people 10 people
Outdoor 100 people 250 people; but for certain outdoor events, 25% maximum capacity or 500 people, whichever smaller.

These capacity limits do not apply to incidental gatherings of persons in shared spaces such as workplaces, public transportation stations, and restaurants. Gatherings and events are only permissible only if people who are not part of the same household can, and do, maintain six feet of distance from each other.

Bars earning more than 70% of their gross receipts from the sales of alcoholic beverages must remained closed for indoor service and prohibit patrons from entering the establishment except to access the outdoor area, leave the establishment or use the restroom. Outdoor parks and recreational facilities may remain open to the extent reasonable accommodations have been made to ensure social distancing. Public outdoor swimming pools also may remain open with 50% capacity limits. Public indoor swimming pools may be open only in Regions 6 and 8 with 25% capacity limits.
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COVID-19 Steps Up, Michigan Steps Back: New Executive Order Reestablishes Previous Stay-at-Home Restrictions
As Michigan’s COVID-19 cases continue to rise, Governor Whitmer issued Executive Order 2020-160 rescinding previous orders that had relaxed Michigan’s stay-at-home requirements. The new order closes or restricts operations of several indoor establishments, restricts social gatherings and events, and reiterates individual and workplace operation guidelines. In addition, the governor issued Executive Order 2020-161, which revises workplace safeguards.

Orders Rescinded by EO 2020-160
EO 2020-160 rescinds the following Orders:

  • EO 2020-110 regarding previous restrictions for certain events, gatherings, and businesses;
  • EO 2020-115 regarding temporary restrictions for certain events, gatherings, and businesses;
  • EO 2020-133 regarding restarting professional sports; and
  • EO 2020-143 regarding closing indoor services at bars.

Individual Responsibilities
EO 2020-160 restates the requirement for individuals to maintain social distance guidelines, such as keeping a distance of six feet from those outside one’s household, as well as reinforces Executive Order 2020-153’s requirement to wear face coverings in public indoor spaces.

Workplace Guidelines
Employees who are capable of performing work remotely must rather than should do so, which strengthens the language used in the previous workplace guidelines established in EO 2020-115. In addition, any business or operation that requires employees to return to work in person must follow the guidelines outlined in the newly issued EO 2020-161.

EO 2020-161, like the previous four workplace guideline orders, requires extensive safeguards across various industry-specific workplaces. Like the previous orders, employers are required to, among other items: (1) develop a COVID-19 preparedness plan consistent with guidance developed by the Occupational Health and Safety Administration; (2) provide COVID-19 safety training and designate a worksite supervisor to ensure compliance with the preparedness plan; (3) conduct daily self-screening protocols; and (4) provide face coverings and cleaning supplies to employees. The EO also requires workplace posters to encourage employees to stay home when sick and to notify the local public health department when an employee has a confirmed case of COVID-19. However, EO 2020-161 issues new protocols for casinos and racetracks, and requires restaurants and bars to enhance measures to encourage social distancing.

Closing of Establishments Open to the Public, Including Closing of Indoor Service Bars
EO 2020-160 requires the closure or the continued closure of the following establishments open to the public: (1) indoor theaters, cinemas, and venues; (2) indoor gymnasiums or other recreational centers; (3) any recreational, amusement, or other entertainment service that is indoor or outdoor, but with close personal contact; (4) licensed Millionaire Parties; (5) licensed casinos, however licensed casinos may operate after August 5 under guidelines pursuant to EO 2020-161; and (6) the indoor facilities of establishments licensed to sell alcohol that earn more than 70% of their gross receipts from the sale of alcoholic beverages (based on 2019 sales or if not open at the time, sales from 2020), but allow patrons to walk through to access the outdoor area, exit, and/or use the restroom.

Indoor and Outdoor Social Gatherings and Events
Gathering requirements have not changed since the previous guidelines in EO 2020-110. Indoor events must be limited to no more than 10 people and outdoor events limited to no more than 100 people, while still ensuring that members not part of the same household are maintaining six feet of distance.

Professional sporting events and leagues are able to resume without an audience, following the guidance from the CDC and the Michigan Department of Health and Human Services, and maintaining six-feet social distancing to the extent possible.

Parks may remain open unless otherwise prohibited by local ordinance, and areas that cannot maintain social distancing must remain closed. Pools may open under the following restrictions: (1) outdoor pools are limited to 50% capacity; (2) indoor pools in Regions 6 and 8 (see below) are limited to 25% capacity; (3) indoor pools outside Regions 6 and 8 are limited to infant and child drowning prevention classes at 25% capacity; and (4) six-feet social distancing must be maintained on the pool deck.

Regions 6 & 8
The above restrictions are less strict for Regions 6 (Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa counties) and Regions 8 (Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa counties). Specifically, indoor establishments open to the public, such as arcades, bowling alleys, cinemas, climbing facilities, convention centers, performance spaces, meeting halls, sports arenas, theaters, or similar indoor venues may be open to spectators or patrons if spectators and patrons maintain six-feet social distance and are limited to 25% capacity or fewer than 250 people, whichever is less. Outdoor events, such as those held at an outdoor concert space, racetrack, sports arena, stadium, or similar outdoor venue, may open to the public as long as patrons maintain six-feet social distancing and 25% of its maximum capacity or to 500, whichever is smaller.

Effective Date
EO 2020-161 took effect immediately on July 29, 2020. EO 2020-160 took effect July 31, 2020 at 12:01 a.m.

Penalty for Willful Violation of Orders
A willful violation of either EO 2020-160 or EO2020-161 is a misdemeanor consistent with MCL 10.33 and MCL 30.405(3).

Additionally, the Department of Health and Safety Services issued an Emergency Order under MCL 333.2253 reinforcing Executive Orders 2020-160 and 2020-161 and allowing for civil fines of up to $1,000 for violations and referral to licensing agencies to determine whether an enforcement action should be pursued.
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Maryland Expands Face Coverings Requirement to Most Workplaces and Imposes Travel Restrictions
Maryland’s Governor issued an Order expanding the mandated use of face coverings to almost all private workplaces, effective 5:00 p.m. on July 31, 2020. In addition, new travel restrictions were also announced, including “strongly recommending” 14-days quarantine periods for certain travel.

Face Coverings. Governor Hogan had previously issued a face coverings order that directly impacted retail and food service employees, while leaving the decision whether to require or request face coverings in other types of private workplaces up to the employer. His July 29, 2020 order now expands the required use of face coverings to essentially all private workplaces in Maryland.

“Face coverings” are defined as a covering that fully covers a person’s nose and mouth, including scarves, bandanas, and (newly added) plastic full-face shields. Of relevance to employers, the Order requires the use of face coverings in the following circumstances:

  • “Indoors at any location where members of the public are generally permitted, including without limitation, Religious Facilities, Retail Establishments, Foodservice Establishments, Fitness Centers, Gaming Facilities, Indoor Recreation Establishments, and Personal Services Establishments.” This would include employees, as well as members of the public.
  • “Outdoors and unable to consistently maintain at least six feet of distance from individuals who are not members of their household.” Thus, outdoor workers coming into regular proximity with co-workers and others are covered by the order.
  • “Engaged in work in any area where…interaction with others is likely, including without limitation, in shared areas of commercial offices.” This broad category captures almost all work environments. “Shared areas” is not defined, but we would expect it to apply to office areas such as lobbies, elevators, break rooms, hallways, restrooms, conference rooms, copy rooms, and shared office spaces, at a minimum. It would also apply to areas like warehouses, loading docks, and production floors. A single occupant of an enclosed office space would not be required to wear a face covering while working in that space.

The Order contains some exceptions to the face coverings requirement, of which the following may apply to employees:

  • Where the individual’s bona fide disability or medical condition makes such use unsafe.
  • Where those with hearing impairments or other disabilities need to see the mouth for communication.
  • If such use would subject the person to an unsafe working condition, as determined by federal, state, or local occupational safety regulators or workplace safety guidelines.

Unlike orders in some other states, the Maryland Order does not address the verification of an individual’s disability or medical condition. Thus, the normal protocols under the Americans with Disabilities Act and state law should apply to an employee seeking an exemption from the face coverings requirement as a reasonable accommodation for a disability or medical condition. The employer should engage in the interactive process with the employee regarding the request for accommodation, through which the employer may obtain information from the employee’s medical provider regarding the nature, severity and duration of the employee’s impairment and substantiating why the impairment prevents the employee from wearing a face covering. The employer may also explore alternative accommodations with the employee and their doctor, as the employee is not necessarily entitled to their desired or the best accommodation—just one that is effective.

Notably, given that clients and patrons of businesses may also have disabilities that impact their ability to wear a mask safely (or communicate with those who are masked), companies should consider adding to signage that communicates the masking requirement information on alternative methods for disabled individuals to access products or services, such as calling a number to receive personal assistance outside the building or alerting an employee of a hearing impairment that will enable alternative methods of communication (such as paper and pencil) to be used. This will avoid placing employees in the position of potentially mishandling requests for accommodation, thereby risking violations of the ADA’s public accommodation requirements.

Travel Restrictions. Separately, Governor Hogan also issued a “travel advisory” on July 29 that “strongly recommends” Marylanders not travel outside of the State and, among other recommendations, suggests that anyone returning from a State with a COVID-19 test positivity rate of 10% or above promptly get tested upon return and self-quarantine until the test results are received (excluding travel to the District of Columbia and Virginia). The Advisory specifies that essential workers traveling and returning to Maryland to perform essential work are exempt from the quarantine recommendation and also excludes employee commuters who leave/enter the state on a daily basis and have work-based COVID-19 screening procedures. It is unclear whether the recommendation to quarantine after certain travel has the status of a quarantine “order” that would trigger a right to emergency paid sick leave under the Families First Coronavirus Response Act. And if the FFCRA does not apply, employers will need to evaluate whether such leave will otherwise be paid.
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COVID-19 Latin America Employer Guide
Baker McKenzie released a COVID-19 Latin America Employer Quick Guide.
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Facing Your Face Mask Duties – A List of Statewide Orders, as of August 3, 2020
Governors and public health officials across the country have implemented stringent measures to help contain the spread of COVID-19, such as safer at home orders. Yet even as businesses begin to reopen, face coverings are likely to remain popular as a preventative measure. Numerous jurisdictions have encouraged—or mandated—citizens to wear face coverings when out in public, especially when social distancing cannot be maintained effectively. Some directives also obligate employers to provide masks to their employees.

This post, current as of August 3, 2020 at 10:00 a.m. (CDT), identifies the jurisdictions where face coverings are recommended or required. We will update this list regularly but expect it will become outdated quickly as new announcements are made.

Note that this list does not include face covering guidance at the local level. If you would like more information, please contact your Littler attorney for additional resources that summarize such requirements at both the state and local level.

Employers interested in related information may wish to consult our interactive reopening map, as well as our articles identifying return to work protocols and employee health screening guidance.

Jurisdiction Requirement or Recommendation Specifics
Federal Recommendation CDC recommends that everyone wear a cloth face covering in public settings where other social distancing measures are difficult to maintain.

OSHA recommends allowing workers to wear masks over their nose and mouth to prevent them from spreading the virus.

Alabama Requirement Each person over age 6 shall wear a face covering at all times when within six feet of a person from another household in any of the following places: an indoor space open to the general public, a vehicle operated by a transportation service, or an outdoor public space where ten or more people are gathered.

Face coverings are expressly required for employees of restaurants, personal care services, entertainment venues, and gyms and fitness centers. Other employees must comply with the general face covering mandate.

NOTE: Many Alabama localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Alaska Recommendation Employees of reopening businesses should wear face coverings.

NOTE: At least one city in Alaska has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Arizona Requirement Required for employees and customers of barbers and cosmetologists.

Recommended for businesses where service cannot be provided without physical distancing: employers should provide and require employees to wear masks.

Residents are recommended to wear cloth face coverings worn in public places where physical distancing is difficult to maintain.

NOTE: Many Arizona localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Arkansas Requirement Every person over age 9 must wear a face covering in all indoor environments where they are exposed to non-household members and distancing of 6 feet or more cannot be assured, and in all outdoor settings where there is exposure to non-household members unless ample space exists to practice physical distancing.

Required for restaurants reopening for dine-in. All staff who come in contact with patrons must wear a face mask that completely covers their nose and mouth. Staff in the back of house are encouraged to wear a face mask. All staff are required to wear gloves. Gloves shall be changed out between each customer, customer group, or task. Patrons must wear a face covering upon entrance and while in the restaurant until the food or drink is served and may be refused service if not wearing a mask.

Required for reopening gyms and fitness centers. Employees must wear a face mask at all times. Patrons must wear a mask except when actively exercising.

NOTE: In Arkansas, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

California Requirement Individuals must wear masks in several specified high-risk situations, including when engaged in work, whether at the workplace or performing work off-site, when (1) interacting in-person with any member of the public; (2) working in any space visited by members of the public, regardless of whether anyone from the public is present at the time; (3) working in any space where food is prepared or packaged for sale or distribution to others; (4) working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities; (5) in any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.

Persons exempted from wearing a face covering due to a medical condition who are employed in a job involving regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

NOTE: Many California localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Colorado Requirement Employees of critical businesses and mass transportation who interact in close proximity with other employees or with the public must: (1) wear medical or non-medical cloth face coverings that cover the nose and mouth while working, except where doing so would inhibit that individual’s health; and (2) wear gloves, as appropriate by industry standards, when in physical contact with customers or goods if gloves are provided to workers by their employer.

Individuals over age 10 must wear a face covering when entering or moving within any indoor public space and when using transportation services. An owner, operator, or manager of a public indoor space may not provide service to individuals or allow an individual to enter unless the individual is wearing a face covering as required. Counties eligible for the Protect Our Neighbors phase may choose to be exempt.

NOTE: Many Colorado localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Connecticut Requirement Essential employees should use masks or cloth face coverings.

Restaurant employees and customers must wear face coverings. Employers must provide face coverings for employees.

Retail employees and customers must wear face coverings. Employers must provide face coverings for employees.

Office-based businesses must require employees to wear employer-provided face coverings.

Personal care services employees and patrons must wear face coverings.

Employers must provide face coverings for employees.

NOTE: In Connecticut, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Delaware Requirement Employers must provide employees with a face covering to wear while working in areas open to the general public and areas in which coming within 6 feet of other staff is likely. Businesses must provide, at their expense, such face coverings as well as hand sanitizer for their employees. All employees are strongly encouraged to use personal face coverings until their employer provides a face covering.

All individuals over age 11 must wear a face covering in specified public places, except where doing so would inhibit that individual’s health or where the individual is under two years of age. A business must decline entry to an individual refusing to wear, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods, or the individual has a medical condition that would prevent them from mask use. Employees and customers of personal care services must wear a face covering. If the customer must remove theirs for a service to be performed, the employee must wear a face shield in addition to a face covering.

 

District of Columbia Requirement Individuals over age 2 must wear a face covering at businesses, office buildings, and other establishments open to members of the public. Employers shall provide masks to their employees. Businesses, office buildings, or other establishments shall exclude or attempt to eject persons who are not wearing masks or who remove their required masks.
Florida Requirement Personal care services providers and employees must wear masks and are also encouraged to provide masks to patrons and/or adopt a policy requiring patrons to wear masks.

All individuals over age 2 are recommended to wear face coverings in any setting where social distancing is not possible.

NOTE: Many Florida localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Georgia Requirement Required for employees of bars, restaurants, personal care services, amusement parks and carnivals, conventions, and live performance venues.

Other open businesses are recommended to provide personal protective equipment as available and appropriate to the function and location of each worker within the business.

Recommended for the general public. Everyone should wear cloth face coverings in public settings where other social distancing measures are difficult to maintain.

NOTE: In Georgia, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdictionMoreover, on July 15, the state issued an order prohibiting local governments from enforcing stricter mask requirements than those set forth by the state.

Hawaii Requirement All customers must wear a face covering while waiting to enter and while at an essential or designated business or operation. All employees of essential or designated businesses or operations who have any contact with customers or goods to be purchased must wear the cloth face covering recommended by the CDC while at their place of employment.

NOTE: In Hawaii, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Idaho Recommendation Employers should identify how personal use items such as masks, face coverings, and gloves may be required by employees, vendors, and/or patrons. Use of face coverings by the general public is strongly recommended.

NOTE: In Idaho, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Illinois Requirement People over age 2 must wear a mask or face covering when in a public place and they either cannot or it is impractical to maintain 6 feet of physical distance between themselves and others. All businesses must ensure that employees and visitors wear face coverings when social distancing is not possible.

NOTE: Many Illinois localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Indiana Requirement All individuals over age 7 must wear a face covering when inside a business, public building, other indoor location open to the public, in an outdoor public space where distancing is not feasible, and while using transportation services.

Face coverings are not required in private offices, private workspaces, or meetings in which 6 feet of distancing can be maintained.

Face coverings are required for restaurant and bar employees, gym/fitness center employees, and personal care services employees.

NOTE: In Indiana, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Iowa None NOTE: In Iowa, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.
Kansas Requirement All businesses and organizations must require employees, customers, members of the public to wear face coverings when (1) employees are working in any space visited by the public, (2) when food is being prepared or packaged, (3) working or present in common areas, (4) customers or members of the public are present in the facility, and (5) in any enclosed area where others are present and are unable to maintain 6 feet distance.

All individuals over age 5 are required to wear a face covering in indoor and outdoor public spaces and while using transportation services.

NOTE: Some counties may have opted-out of the governor’s face covering requirement, under recently-enacted Kansas law. Other localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Kentucky Requirement Individuals over age 5 must wear a face covering while inside or waiting to enter any retail establishment, grocery store, pharmacy, personal care services establishment, childcare facility, restaurant, bar, health care provider, or any other indoor or outdoor public space where it is difficult to maintain 6 feet of physical distance from others. Face coverings are also required when using transportation services.

Businesses must provide PPE to employees and ensure, to the greatest extent practicable, that their employees wear a cloth mask. A business need not require an employee to wear a mask when masking would create a serious health or safety hazard to the employee or when the employee is working alone in an enclosed space. Businesses must ensure that employees whose job duties include touching items often touched by others (e.g. credit cards/cash, paper, computers) wear gloves that are regularly replaced.

Louisiana Requirement All employees of a business who have contact with the public must wear a mask. All restaurant employees must wear masks and should wear gloves.

All individuals over age 7 must wear a face covering when inside a commercial establishment or any other building or space open to the public, whether indoor or outdoor, including transportation services. All businesses and organizations must require all persons entering the premises to wear face coverings unless located in a parish that has opted out (those with fewer than 100 new cases per 100K people in the previous 2 weeks may opt out of the requirement).

NOTE: In Louisiana, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Maine Requirement Individuals must wear a cloth face covering in public settings when other social distancing is difficult.

The following businesses must require face coverings to be worn: retail stores with more than 50,000 square feet of shopping space, restaurants, outdoor bars or tasting rooms, and lodging establishments in Hancock, Waldo, Knox, Lincoln, Sagadahoc, Cumberland, and York Counties, and in the cities of Bangor, Brewer, Lewiston, Auburn, and Augusta.

Retail employees must wear face coverings.

Restaurant employees must wear face coverings.

NOTE: In Maine, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Maryland Requirement All customers over age 5 are required to wear face coverings (1) while using transportation services; (2) indoors at any location where members of the public are generally permitted; (3) outdoors and unable to consistently maintain at least six feet of distance from individuals who are not members of their household; (4) while obtaining healthcare services; and (5) while engaged in work in any area where interaction with others is likely, including without limitation, in shared areas of commercial offices or where food is prepared or packaged.

NOTE: In Maryland, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Massachusetts Requirement Residents over age 2 must wear face coverings in public settings, including in essential businesses and on public transportation. The requirement applies to both customers and employees of essential businesses. If a customer refuses to wear a face covering for non-medical reasons, the business may decline entry.

NOTE: Many Massachusetts localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Michigan Requirement All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers, as well as gloves, goggles, face shields as appropriate for the activity being performed.

Any individual over age 4 leaving their residence must wear a face covering when in an indoor public space or in an outdoor public space and are unable to consistently maintain a distance of six feet or more from individuals who are not members of their household. Face coverings are also required when using transportation services. No business that is open to the public may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering. A business may not assume that an unmasked customer cannot medically tolerate a face covering, though it can accept a customer’s verbal representation to that effect.

NOTE: In Michigan, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Minnesota Requirement Individuals over age 5 must wear a face covering in indoor businesses and indoor public settings, when using transportation services, and in any other business, venue, or public space which has opted to require a face covering when it would not otherwise be required. Businesses must require that all persons, including their workers, customers, and visitors, wear face coverings, and when possible, provide accommodations for people who cannot due to a medical condition or disability.

Workers must also wear face coverings outdoors when it is not possible to maintain social distancing. Workers must also comply with any applicable industry guidance, such as a requirement to use face shields.

NOTE: In Minnesota, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Mississippi Requirement Required for all businesses in Bolivar, Calhoun, Carroll, Claiborne, Coahoma, Covington, De Soto, Forrest, Grenada, Harrison, Hinds, Holmes, Humphreys, Jackson, Jefferson, Jones, Lamar, Lee, LeFlore, Lowndes, Madison, Montgomery, Noxubee, Pinola, Pontotoc, Quitman, Rankin, Sharkey, Simpson, Sunflower, Tallahatchie, Tate, Walthall, Washington, Wayne, Winston, and Yalobusha Counties. Face coverings shall be worn by all employees based on their duties and responsibilities. Employers shall provide employees who have contact with the public with a face covering and require such employees to wear face coverings. Patrons and customers must also wear face coverings.

Restaurants and bars reopening for dine-in service must provide cloth masks to employees who come into contact with customers and require those employees to wear the masks. “Appropriate PPE” must be worn by all restaurant and bar employees based on their duties.

Personal care services employees and patrons must wear employer-provided face coverings and must also require customers to wear face coverings.

Gym and fitness center employees must wear employer-provided face coverings.

In the counties where masks are not required, residents are recommended to wear non-medical grade masks or homemade cloth masks when shopping, running errands, or otherwise away from home.

NOTE: In Mississippi, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Missouri Recommendation People should wear cloth face coverings in public settings where other social distancing measures are difficult to maintain.

NOTE: In Missouri, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Montana Requirement In counties in which there are four or more confirmed and active COVID-19 cases, and only during the time in which there are four or more active cases: all businesses or other persons responsible for indoor spaces open to the public shall require and take reasonable measures to ensure that all employees, contractors, volunteers, customers, or other members of the public wear a face covering at all times while entering or remaining in any indoor spaces open to the public. Only those employees, volunteers, and contractors in public-facing workspaces are required to wear face coverings. Employers must provide face coverings for all employees and volunteers. For any organized outdoor activity where social distancing is not possible or is not observed, sponsors shall require and take reasonable measures to ensure that all persons attending an organized outdoor activity wear a face covering.

NOTE: In Montana, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Nebraska Requirement Personal care services (barbershops, salonsbody artmassage therapy) employees and customers must wear face coverings.

Recommended for restaurant employees.

Residents are recommended to wear a cloth face covering in public places where they cannot stay 6 feet away from others.

Recommended for meat processing employees. It is highly recommended, as available, to provide employees in meat processing plants with procedure (surgical) masks due to the close contact they have with other employees and the liquid contact frequency in the work environment.

NOTE: In Nebraska, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Nevada Requirement All individuals over age 9 must wear face coverings in public spaces. Businesses operating during Phase 2 must ensure that employees, customers, patrons, patients, and clients wear face coverings, including by prohibiting persons without face coverings from entering the premises.
New Hampshire Requirement Retail, restaurant, golf course, and personal care services employees must wear cloth face coverings at all times when in the retail facility and in public locations or shared staff areas (e.g. break rooms), even if other individuals are not immediately present.

Employees of other essential businesses and organizations and those that are re-opening all or a portion of their operations are strongly recommended to wear a cloth face covering while at work and in potential close contact with others.

NOTE: In New Hampshire, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

New Jersey Requirement Individuals must wear face coverings in both indoor and outdoor spaces accessible to the public.

Customers and employees of essential retail businesses (retail, restaurants, manufacturing, warehousing, essential construction) must wear cloth face coverings inside the business, and businesses may decline entry to customers not wearing a covering. The order specifies the requirements and exceptions. Employees must also wear gloves when in contact with customers or goods. Businesses must provide, at their expense, the face coverings and gloves for employees.

Required for workers and visitors on construction sites.

NJ Transit and private transit companies must require workers and customers to wear cloth face coverings while on trains, buses and light rail vehicles, and passengers may be declined entry if they do not wear a covering. The order specifies the requirements and exceptions.

Required for agricultural workers.

NOTE: In New Jersey, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

New Mexico Requirement All employers must provide all employees with face coverings and require they be used in the workplace.

Restaurants, along with essential retail with over 50,000 sq ft of building space, must require their employees to wear face coverings or masks. All essential retail businesses must require employees to wear face coverings or masks.

Individuals are required to wear face coverings while exercising. Gyms and fitness centers must require patrons to comply with the requirement.

NOTE: In New Mexico, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

New York Requirement Employers that are essential businesses must provide, at the employer’s expense, face coverings for employees to wear when performing work that involves direct contact with customers or members of the public.

Any individual who is over age 2 and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance. Business owners may deny admittance to individuals who fail to comply with the directive to wear a face covering.

NOTE: New York City has its own face covering obligations. In addition, some localities may have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

North Carolina Requirement Restaurant, retail, construction, manufacturing, trades, agricultural, meat processing, transportation, and personal care services employees are required to wear face coverings. Customers of restaurants, retail, transportation, and personal care services must wear face coverings at the business.

Members of the public are recommended to wear face coverings in public.

NOTE: In North Carolina, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

North Dakota Requirement Required for personal care services employees.

Recommended for everyone else. Employees and the public should wear face coverings especially in settings where social distancing may be difficult to maintain. Employers should encourage use of face coverings by employees and contracted workers whose duties require close contact (within 6 feet for ten minutes or more) with other employees and/or the public.

Ohio Requirement Face coverings required for employees at all times. The guidance lists exceptions.

Individuals over age 9 must wear facial coverings in public at all times when at an indoor location that is not a residence; outdoors, but unable to maintain six-foot social distance from people who are not household members; and while using transportation services.

NOTE: In Ohio, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Oklahoma Recommendation Recommendation to follow CDC guidelines.

NOTE: In Oklahoma, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Oregon Requirement A business and a person responsible for indoor and outdoor spaces open to the public must require employees, contractors, volunteers, customers and visitors to wear a mask, face shield, or face covering.

Masks, face coverings or face shields are not required when at or in a location where the employee, contractor or volunteer is not interacting with the public and at least six feet of distance can be maintained between other people.

Employers must provide masks for employees and at least disposable masks for customers and visitors at no cost.

These employers must develop and comply with policies and procedures that provide for accommodations and exemptions from the mask or face covering requirement.

These businesses may require customers and visitors to wear face coverings.

Face coverings are required for individuals over age 5 in indoor and outdoor public spaces, including for individuals exercising indoors, as well as outdoors if distancing cannot be maintained.

NOTE: In Oregon, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Pennsylvania Requirement Employers permitted to maintain in-person operations must provide masks for employees to wear during their time at the business and make it a mandatory requirement to wear masks while on the work site, except to the extent an employee is using break time to eat or drink. Employers may approve masks or face coverings obtained or made by employees.

Businesses, other than health care providers, that serve the public within a building or a defined area require all customers to wear masks while on premises, and deny entry to people not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pick-up or delivery of such goods. Customers who cannot wear a mask due to a medical condition, and children under the age of two, may enter the premises without a mask. Customers are not required to provide documentation of a medical condition.

Individuals over age 2 are required to wear face coverings in indoor or outdoor locations where maintaining 6 feet distance is not possible. This includes while working at the workplace or off site, interacting with or working in a space visited by the public, where food is being packaged or prepared, and in common areas and spaces where others are present.

NOTE: In Pennsylvania, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Puerto Rico Requirement People are required to wear face coverings when in public spaces. Businesses must ensure customers are wearing face coverings.
Rhode Island Requirement Employees, customers, and visitors to essential and reopening businesses must wear face coverings. All individuals over age 2 must wear face coverings in indoor and outdoor public places.
South Carolina Recommendation Employees should be encouraged to wear masks or cloth face coverings, especially when in settings in which social distancing is not feasible. Cloth face coverings should be optional for employees with underlying respiratory illness, but if not worn, social distancing must be performed.

NOTE: In South Carolina, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

South Dakota Recommendation People are encouraged to wear cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission.
Tennessee Recommendation Employees are encouraged to wear a face covering at work. Members of the public are encouraged to wear a face covering in public places.

NOTE: In Tennessee, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Texas Requirement Every person over age 9 shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household.

People in counties with minimal COVID-19 cases as certified by the state are exempt but are strongly encouraged to wear face coverings.

NOTE: In Texas, many localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Utah Requirement Individuals acting in the capacity of an employee of a business are required to wear a face covering when unable to maintain a distance of 6 feet from another individual.

Face coverings are strongly recommended for all other individuals.

Face coverings will be required for all students, faculty, staff and visitors of K-12 and charter schools, in buildings and on buses.

NOTE: In Utah, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Vermont Requirement All individuals over age 2 shall wear masks or cloth facial coverings over their nose and mouth any time they are in public spaces, indoors or outdoors, where they come in contact with others from outside their households, especially in congregate settings, and where it is not possible to maintain a physical distance of at least six feet. All businesses must require employees to wear non-medical cloth face coverings over their nose and mouth when in the presence of others. In the case of retail cashiers, a translucent shield or “sneeze guard” is acceptable in lieu of a mask.
Virginia Requirement Essential retail businesses must provide face coverings to employees.

Required for some businesses. Retail, restaurant and other food and beverage establishments, gyms and fitness centers, and personal care services must require employees in public facing areas to wear face coverings. Personal care services must also require patrons to wear face coverings. Businesses may deny entry to patrons not wearing face coverings.

Required for patrons over age 10 when in essential and reopened businesses and any other indoor place shared by groups of people who are in close proximity to each other.

Washington Requirement Residents are required to wear cloth face coverings when they are in indoor or outdoor public settings where they cannot maintain 6 feet of distance from others.

Businesses serving the public must require employees to wear face coverings and strictly enforce the requirement and refuse to serve patrons not wearing masks.

All employers must identify PPE and cloth facial coverings in accordance with requirements on facial coverings and industry specific COVID-19 standards and provide the necessary PPE and supplies to employees.

NOTE: In Washington, at least one locality has provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

West Virginia Requirement All individuals over age 9 must wear a face covering when in confined indoor spaces and when not able to adequately social distance from others

Restaurants must require all employees to wear face coverings at all times.

Small businesses (10 or fewer employees) are recommended to require their employees who have contact with customers to wear a mask and gloves.

Wisconsin Requirement Every individual age 5 and older must wear a face covering if indoors or in an enclosed space, other than at a private residence and others who are not members of individual’s household or living unit are present in the same room or enclosed space. Face coverings are strongly recommended in all other settings, including outdoors when it is not possible to maintain physical distancing.

NOTE: In Wisconsin, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

Wyoming Requirement Required for employees of reopening businesses. Required for personal care services employees and patrons.

Grocery store and retail personnel are recommended to follow CDC guidance regarding wearing face coverings while at work. Customers should be encouraged to wear face coverings while in the store.

NOTE: In Wyoming, some localities have provisions concerning face coverings for employees and/or customers. Please check with your Littler attorney for additional information about your particular jurisdiction.

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Governor Evers Issues Statewide Face Covering Mandate; Legal Challenges Expected
Today, Wisconsin Governor Tony Evers issued a statewide face covering mandate in conjunction with the declaration of a new public health emergency as it relates to the ongoing COVID-19 pandemic. The mandate is set to go into effect Saturday, August 1, and remain in effect through Monday, September 28, unless extended.

The statewide mandate orders all persons ages five and older to wear a face covering in all indoor or enclosed spaces (other than private residences) where an individual who is not a member of the person’s household is also present. “Face covering” is defined as a piece of cloth or other material worn to cover the nose and mouth completely and includes but is not limited to a bandana, a cloth face mask, a disposable or paper mask, a neck gaiter, or a religious face covering. It does not include face shields, mesh masks, masks with holes or openings, or masks with vents.

Additional guidance clarifies that, under the new mandate, face coverings are required inside all office spaces and other businesses across the state, unless an employee is the only person in the room (e.g. in the case of someone working in an individual office). Employers are not obligated to provide face coverings to their employees or customers but are encouraged to do so.

Exceptions to the face covering requirement include circumstances in which people are:

  • Eating or drinking;
  • Communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means;
  • Obtaining a service that requires the temporary removal of a face covering (e.g. dental services);
  • Sleeping;
  • Swimming or on duty as a lifeguard;
  • Actively speaking while giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience (and maintaining a six-foot distance from others); or
  • Engaging in work where wearing a face covering would create a safety risk to the person, as determine by government safety guidelines or regulations.

Additionally, face coverings are not required when removal is necessary to confirm a person’s identity (e.g. when entering a bank or other financial institution), or where federal or state law prohibits wearing a face covering.

In addition, several people are exempt from wearing face coverings as required by this mandate, including:

  • Children under the age two, and children between the ages of two and five where physical distancing is not possible;
  • People who have trouble breathing;
  • People who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance;
  • People with medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent them from wearing a face covering; and
  • People who are incarcerated.

Violations of the statewide mask mandate may result in fines up to $200. It is not clear what if any obligation employers have to enforce the order, or what penalties may befall employers that fail to do so. A frequently asked questions (FAQ) document is available here and further guidance is anticipated.

Republican lawmakers have already requested an immediate call of the Legislature into session to pass a joint resolution invalidating the mandate and emergency declaration. There may also be a legal challenge to the mandate in the courts, although the makeup of the Wisconsin Supreme Court has changed since it upheld a challenge to Governor Evers’ “safer at home” order with the election of Jill Karofsky who unseated Justice Daniel Kelly.
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With COVID-19 Resurgent, Employers Confront Privacy and Information Security Issues When Testing Employees for COVID-19
With the resurgence of COVID-19 infections across the United States, employers are facing growing pressure to ascertain whether their employees have contracted the virus. Temperature checks and symptoms screening, while helpful, will not identify employees who are asymptomatic and potentially contagious. This gap is critical because studies show that up to 45% of people infected with the virus do not show any symptoms.1 As a result, COVID-19 testing can be essential to remaining operational or reopening after a workplace outbreak.

The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that mandatory testing of employees for COVID-19 falls within an exception to the Americans with Disabilities Act’s (ADA) general prohibition against mandatory medical examinations of employees. While lawful under the ADA, testing presents serious privacy and information security risks for employers. We describe in this article the common concerns raised at each stage of the testing process, from deciding whom to test to handling the test results. For each stage, we describe practical steps employers can take to help address these concerns.

Who Should be Tested and How Frequently: Reducing the Risk of Unlawful Data Collection
In deciding which employees to test and how frequently to test them, employers must tailor their testing program to align with the rationale for legally permissible testing. Although the ADA generally prohibits medical examinations of employees, such examinations are permissible to determine whether an employee poses a direct threat to the workplace. In guidance issued on April 23, 2020, the EEOC clarified that the COVID-19 pandemic poses a direct threat to the workplace, opening the door for COVID-19 testing of employees to reduce the risk of infection of co-workers and others. That guidance, however, does not mean employers necessarily could justify the substantial privacy intrusion of frequent testing of all employees.

To help minimize intrusiveness and ensure that COVID-19 testing will fall within the “direct threat exception” to the ADA’s general prohibition on employee testing, employers should design their testing program based on objective evidence of how the virus spreads and how the test detects the virus. For example, testing employees who work exclusively in their own office where they can isolate themselves from co-workers may be more difficult to justify than testing factory workers who cannot engage in social distancing because of the nature of the manufacturing process. As another example, testing employees who must engage in business travel to perform their job responsibilities generally should be delayed until a few days after those employees have completed business travel (assuming they are asymptomatic at that time) because studies indicate that individuals may not have reliably detectable levels of virus until several days after exposure.2 Consequently, testing these employees on the day they return from business travel would more likely result in false negatives and arguably would not be necessary to prevent a direct threat to the workplace.

As these examples highlight, employers need to design their testing program to ensure that the testing at least has the potential to materially reduce the risk of COVID-19 infection in the workplace. Therefore, when structuring the program, employers should evaluate a wide range of factors specific to the employer’s workplace, such as where and how employees perform their job responsibilities, the nature of the business, the physical layout of the workplace, and the degree of community spread in the relevant jurisdiction. The results of this evaluation should serve as the basis for a written testing protocol. Adherence to the protocol would assist the employer to conduct testing in a consistent manner across the organization. In addition, the protocol would support the conclusion that the employer conducts COVID-19 testing only as necessary to prevent a direct threat to the workplace. Of course, any testing protocol will need to be administered across similarly situated employees to avoid allegations of discrimination. At the same time, employers should permit limited exceptions as necessary to accommodate disabled employees and employees’ religious beliefs.

Selecting the Test: Accuracy and Reliability
Due to the inherent invasiveness of medical examinations, employers should avoid subjecting employees to COVID-19 tests unless they provide useful results. Indeed, the EEOC’s guidance emphasizes that only “accurate and reliable” COVID-19 tests fall within the “direct threat exception” to the ADA’s general prohibition on employee testing.3 Consequently, employers’ test selection is fundamental to the lawfulness of the testing program.

COVID-19 tests currently fall into the following three high-level categories with varying levels of accuracy and reliability:

  1. Virus tests: tests for the presence of the SARS-CoV-2 virus that causes COVID-19;
  2. Antibody tests: tests for antibodies to the virus; and
  3. Antigen tests: tests for the presence of proteins that are part of the virus.

Of these, the most likely candidate for employers is the virus test. In guidance issued on June 17, 2020, the EEOC opined that the ADA does not permit antibody tests. The EEOC cited the Centers for Disease Control and Prevention’s (CDC) own guidance that antibody tests “should not be used to make decisions about returning persons to the workplace,” because they are not sufficiently accurate or reliable. Also, at least at this time, antigen tests show low levels of accuracy compared to tests for the virus itself and, therefore, also are likely impermissible under the ADA.

Even when selecting a virus test, employers need to confirm the test’s reliability. For example, while many “rapid” testing products are making their way into the marketplace, their accuracy and reliability may be subject to challenge.

How to Conduct COVID-19 Testing in Compliance with HIPAA, the ADA, and the CCPA
The Health Insurance Portability and Accountability Act (HIPAA) and the ADA closely regulate the collection, use and disclosure of health data, and the California Consumer Privacy Act (CCPA) establishes notice requirements for the collection of any type of employee personal information. To lawfully obtain and use the results of employees’ COVID-19 tests, employers must structure the testing process to comply with these laws.

HIPAA Considerations
Regardless of whether an employer relies on in-house medical staff, a third-party service provider, or employees themselves to collect the specimen for COVID-19 testing, most employers will have no choice but to rely on a third-party laboratory to test the specimen for the presence of COVID-19. Many testing laboratories are “covered entities” subject to HIPAA. When a HIPAA-covered laboratory conducts the COVID-19 test, the test results and all related health and demographic information are protected health information (PHI) that must be handled in compliance with HIPAA.

HIPAA generally prohibits a covered entity from disclosing PHI without the subject’s first executing a HIPAA-compliant authorization. That means testing laboratories subject to HIPAA cannot disclose COVID-19 test results to the employer without a HIPAA-compliant authorization executed by the employee. Several states add state-specific requirements to the contents of this authorization form. Employers should, therefore, include in their employee-testing packet a HIPAA-compliant authorization form that employees must sign and provide to the testing laboratory when the testing laboratory is subject to HIPAA.

Some testing laboratories are not subject to HIPAA. Using such laboratories would avoid the need to obtain a HIPAA-compliant authorization from each employee who is tested. That benefit generally will not outweigh two key advantages of using a HIPAA-covered testing lab. First, HIPAA-covered labs are required to implement the extensive information security safeguards required by the HIPAA Security Rule, thereby reducing the risk of a security breach (discussed further below) involving COVID-19 test results. Second, employees may have a greater level of trust in a HIPAA-covered testing lab and be less likely to refuse to participate in the testing program.

ADA Considerations
Once the employer receives the COVID-19 test results, the employer must handle them in compliance with the ADA—regardless of whether the testing laboratory is subject to HIPAA. The ADA applies to any employee health information received by an employer when assessing whether employees constitute a direct threat to the workplace, i.e. are infected by COVID-19.

The ADA requires employers to maintain the confidentiality of the results of employee medical examinations. In particular, the test results must be maintained in a confidential medical file separate from the general personnel file. Only those employees who need the test outcome to protect the workplace from COVID-19 infection should be granted access to the information. For many employers, this means a small group of employees, typically including HR professionals, who are responsible for the organization’s COVID-19 response.

The ADA also prohibits employers from disclosing employee medical information to third parties except in narrow circumstances that generally will not apply in the context of COVID-19 testing. Consequently, those employees authorized to review test results should be trained not to disclose them to third parties with one important exception. The EEOC has issued guidance stating that employers may disclose positive COVID-19 test results to relevant public health authorities.

The ADA raises one other noteworthy consideration. The ADA allows employers to conduct voluntary medical examinations only as part of an “employee health program.” Such programs must comply with several regulatory requirements, including (a) a prohibition on disclosure to the employer of employee medical information gathered through the program, and (b) distribution of a notice to employees that informs employees, among other things, of the confidentiality requirement. To complicate matters further, in certain conditions, an “employee health program” that offers voluntary COVID-19 testing will be subject to ERISA. As a result of these requirements, voluntary COVID-19 testing may not be an attractive option for many employers.

CCPA Notice Requirements
The CCPA requires covered employers to provide employees who reside in California with a “notice at collection” at or before the point when the employer obtains the test results. This notice must describe the categories of personal information to be collected and how the employer will use the information. Generally, employers will find it most convenient to provide the notice either as part of a general announcement of the testing program or when the specimen is collected (unless the employee engages in self-collection). The employer must then use the test results only for the purposes detailed in the notice and ensure that the testing lab does the same.

Safeguarding Test Results to Reduce Data Security Risks
Employers need to protect against a security breach involving COVID-19 test results in their own possession. In many states, the unauthorized acquisition of health data may constitute a data breach. Nineteen states, the District of Columbia and Puerto Rico define health information as “personal information” for purposes of data breach notification laws. In these states, a breach of COVID-19 test results—whether positive or negative—might require notifications to the affected employees and, in some states, to government authorities.

The security breach risk is especially high for employers in California, which is one of the states that classifies health information as “personal information” for purposes of data breach notification laws. Under the CCPA, California residents now have the right to recover up to $750 in statutory damages for a breach of health data, on an individual or class-wide basis, when that breach results from the employer’s failure to implement reasonable safeguards for the compromised information.

Employers also should consider the risk of a security breach when contracting with testing laboratories. If the testing laboratory is subject to HIPAA and employees’ test results are compromised, the laboratory would be required to notify relevant employees and the U.S. Department of Health and Human Services of the security breach. Although the laboratory would bear the brunt of the cost, the employer likely would incur costs itself and be confronted with employee complaints. Consequently, employers should ensure that any agreement with a testing laboratory, at a minimum, impose stringent information security standards on the laboratory and address the risks associated with a security breach. Even when the testing laboratory is not subject to HIPAA, employers should consider obtaining similar provisions in the service agreement because, as described above, many state data breach notification laws require notification when health information is compromised.

Takeaways
Employers planning to test their employees for COVID-19 should consider taking the following steps:

  • Implement a protocol that aligns the scope and frequency of testing with the objective of reducing the direct threat of COVID-19 infection to the workplace;
  • Select an accurate and reliable COVID-19 test;
  • Inform employees of the testing program and provide a CCPA notice at collection when applicable;
  • Require employees to execute a HIPAA-compliant authorization to allow any HIPAA-covered testing laboratory to disclose the COVID-19 test results to the employer;
  • Implement safeguards for test results that are maintained by the employer; and
  • Include in the service agreement with any testing laboratory provisions that address information security and the risk of a security breach.

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San Francisco Issues Order Requiring Face Coverings in Public and in Workplace
On July 22, 2020, Health Officer Tomás J. Aragón of the City and County of San Francisco issued Public Health Emergency Order No. C19-12c, entitled, “Order of the Health Officer of the City and County of San Francisco Generally Requiring Members of the Public and Workers to Wear Face Coverings.” This order replaces San Francisco’s previous face covering order, issued on May 28, 2020, and became effective at 11:59 p.m. on July 23, 2020.

By this order, San Francisco makes clear that it expects employees to wear face coverings except in very limited circumstances. According to the order, “[e]veryone must wear a [f]ace [c]overing in the workplace except when in a completely enclosed private space or an isolated area not regularly used by others.” Additionally, the order requires that “[e]veryone must wear a [f]ace [c]overing when in shared areas of buildings including lobbies, common rooms, hallways, laundry areas, food preparation spaces, and bathrooms.” The order states that “[p]eople may remove their [f]ace [c]overing when they are outdoors if they are alone or with only members of their household or living unit and nobody else is within six feet.” Similarly, individuals may remove their face coverings when they are eating or drinking, whether indoors or outdoors, and no one else is within six feet.

The order includes certain exceptions that apply to the workplace. Individuals who can show they have “a written exemption from a healthcare provider based on a disability, medical condition, or other condition that prevents them from wearing a [f]ace [c]overing [need not] wear one.” Employees also do not need to wear face coverings while working if to do so “would create a risk to the person related to their work as determined by local, state, or federal regulators or workplace safety guidelines.” Individuals who are exempt from wearing a face covering such as a mask “still must wear an alternative face covering, such as a face shield with a drape on the bottom edge,” unless they can show either a written medical exemption or that wearing one while working would create a work-related risk to them as determined by government regulators or workplace safety guidelines.

The order also makes clear that San Francisco expects businesses to enforce face covering requirements for both employees and customers. Businesses must “[r]equire their employees, contractors, owners, volunteers, gig workers, and other personnel to wear a [f]ace [c]overing at the workplace and when performing work off-site at all times,” although with allowances for the exceptions included in the order.

In addition, businesses must “[t]ake reasonable measures, such as posting signs, to remind customers, clients, visitors, and others of the requirement that they wear a [f]ace [c]overing while inside of or waiting in line to enter the business, facility, or location.” They also “must take all reasonable steps to prohibit any member of the public who is not wearing a [f]ace [c]overing from waiting in line or entering.” Businesses must not serve individuals who will not wear face coverings and “seek to remove [those] person[s].”

The order states that failure to comply with any of its provisions of “constitutes an imminent threat and immediate menace to public health [and] constitutes a public nuisance.” Violating the order is “punishable by fine, imprisonment, or both.”
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CDC Issues COVID-19 Communication Plan for Critical Infrastructure Employers
On August 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued a communication plan titled “COVID-19 Communication Plan for Select Non-healthcare Critical Infrastructure Employers.” The purpose of the plan is to outline actions certain critical infrastructure employers may consider to disseminate COVID-19 messages with employees more effectively. The plan suggests key messages employers may consider to inform employees and provides prepared CDC communication materials in multiple languages for use in the workplace.

A key recommendation in the plan is that employers should consider multiple means by which to communicate COVID-19 messages to employees and other stakeholders, such as through letters to employees, small group meetings (presumably maintaining social distancing and other mitigation measures), social media posts, onsite televisions or video monitors, text messages, and posting materials throughout the workplace in areas such as cafeterias, locker rooms, bulletin boards, restrooms, entry areas, breakrooms, and other similar locations. The CDC recommends communicating key messages to employees on a regular basis based on what is happening in the specific workplace and community. The plan contains links to helpful CDC posters, handouts, social media messaging, and videos, many of which are available in multiple languages.

With respect to the substance of employee communications, the CDC recommends focusing on two primary messages:

  • “COVID-19 has affected communities across the nation, including ours. We are working with state and local officials and CDC to protect our employees’ health.
  • Please follow safety guidelines at work, at home, and in the community to help slow the spread of coronavirus.” [Emphasis in original.]

The plan offers suggestions regarding general messages applicable to all employees, such as the importance of staying home when sick, information regarding COVID-19 symptoms and how the disease is spread, and the importance of mitigation precautions such as social distancing and face coverings. The plan also contains tailored recommendations for communications to different categories of employees. For example, the plan offers messages for workers who are “at higher risk for severe illness,” workers who are sick with symptoms or have been diagnosed with COVID-19, managers and supervisors, and workers who may have been exposed to COVID-19.

Often, workplace safety measures are only as effective as the degree to which managers and employees take the risks and safety measures seriously. The CDC communication plan offers information that may be of interest to all employers, but, in particular, those with critical infrastructure workers may want to review the plan while considering how to augment the company’s communications practices around the issue of COVID-19.
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Contrary to EEOC Pandemic Guidance, New York City Warns Employers Against Preferential Treatment of Older Workers
Employers are struggling to find a new normal in light of the ongoing pandemic. They are grappling with reopening businesses, implementing reductions in force and furloughs, and filling new employment needs through hiring and restructuring. They are also determining how to handle older workers—those 65 and older—who are more vulnerable to becoming seriously ill if they contract COVID-19. In recently issued general guidance (“Guidance”) and supplemental COVID-19 guidance (“Supplemental Guidance”) on age discrimination, the New York City Commission on Human Rights (“Commission”) addresses how entrenched stereotypes and prejudice regarding age (both of older and younger employees) can impact workers in all of these areas. The Commission discusses the impact of age discrimination, provides guidance on accommodations, cautions against certain practices, and offers recommended best practices for employers to create “intergenerational” workforces, particularly in light of the unique COVID-19 issues.

The Commission Affirms the Basic Principles of the City’s Broad Ban on Age Discrimination
The Guidance reminds employers of various tenets of New York City’s ban on age discrimination, including that the prohibition:

  • covers employers with four or more employees and/or independent contractors, and applies to all types of employees (e.g., full-time, part-time, etc.), freelancers, independent contractors, and interns (whether paid or unpaid), as well as job applicants;
  • is broader in some respects than its federal or state counterpart, and is to be liberally construed;
  • forbids disparate treatment discrimination (i.e., treating an employee less favorably than other workers because of the employee’s age), disparate impact discrimination (i.e., applying a policy or practice that, while neutral on its face, adversely affects a group of workers because of their age), harassment, and retaliation; and
  • is violated if “age discrimination constitutes even part of the employer’s motivation for denying a person employment” or taking other adverse employment action.

The Commission Reiterates That Age Need Not Be Accommodated and Warns Against Giving Preferential Treatment Based on Age
As we previously reported, the federal Equal Employment Opportunity Commission (“EEOC”) takes the position that neither the Age Discrimination in Employment Act (“ADEA”) nor any other federal law (such as the Americans with Disabilities Act (“ADA”)) requires employers to reasonably accommodate employees based on their age. The Supplemental Guidance similarly affirms that the New York City Human Rights Law (“NYCHRL” or “city law”), like federal law, does not require reasonable accommodation based on age. Thus, because age is not a protected basis for an accommodation under federal or city law, an employer is not required, for example, to provide an accommodation to an older worker who fears returning to work because of his or her age and wants to continue to telework. As the Commission explains, an employer is not obligated to provide an accommodation “based solely on concerns that older workers are susceptible to [a] significant health risk.” However, if an employer permits other workers to work from home, such as those with childcare responsibilities or employees with higher-risk household members, “it should also offer telework as an option to other employees, including older workers.”

The EEOC and the Commission differ, however, as to whether employers can provide preferential treatment to older workers. The EEOC advises that, since no federal law prohibits employers from accommodating older workers, employers may do so, even if the accommodation results in younger workers being treated less favorably. The Commission takes a different view.

The Commission instructs that while city law (like federal law) does not require reasonable accommodation based on age, the NYCHRL (unlike the ADEA) prohibits employers from giving older workers “preferential treatment.” Accordingly, if a covered New York City employer “is providing accommodations to its workers beyond those legally required, it must treat workers the same regardless of age,” unless the employer can demonstrate that the policy or practice having an unfavorable effect on one age group “bears a significant relationship to a significant business objective and there is no alternative approach that would avoid the disparate impact on that age group.”

The conflict between federal and city law arises from the fact that the NYCHRL protects individuals of all ages from discrimination, not just those 40 and older. Thus, city law forbids a policy or practice that favors older workers over younger workers (or vice versa), such as providing accommodations based on age. Under the NYCHRL, for example, employers may not implement a policy that “would permit older workers to work remotely while prohibiting younger workers from doing so.” This is exactly the opposite of the EEOC’s guidance on the same issue.

Like the EEOC’s COVID-19 guidance, the Supplemental Guidance also reminds employers of their obligation to reasonably accommodate an employee’s disability, unless doing so would pose an undue hardship on the employer or the disability “presents a direct threat that cannot be adequately mitigated by a reasonable accommodation.”[3] The Supplemental Guidance stresses that employees “of all ages may have underlying health conditions that put them at higher risk for a serious illness if they become infected with COVID-19,” and, thus, “a legal right to an accommodation based on disability.” Accordingly, the Commission encourages employers to communicate their reasonable accommodation policies “when an employee expresses concerns about returning to work based on their age.”

Note: Under the ADA, once an employee requests an accommodation for a protected reason (e.g., a disability), the employer must engage in an “interactive process” with the employee to determine if a reasonable accommodation is available that would not result in undue hardship or pose a direct threat to the safety of others or the employer’s operations. Under the NYCHRL, however, employers are required to engage in a “cooperative dialogue” with an employee when they know or have reason to know that the employee may require a reasonable accommodation for a disability. Thus, in contrast with EEOC guidance, the Commission’s Guidance states that “if an employer knows that an employee has a medical condition that the employer is aware might place them at higher risk for severe illness if they get COVID-19, the NYCHRL requires the employer to engage the employee in a cooperative dialogue about a potential accommodation, even if the employee has not requested a reasonable accommodation.” [Emphasis added.]

The Commission Confirms Proper Screening and Testing Is Permitted
Like the EEOC’s guidance on COVID-19 testing, the Supplemental Guidance instructs that employers may require that workers “undergo tests such as temperature checks or diagnostic tests to confirm whether employees pose a direct threat to workplace health and safety due to infection, even though such examinations would ordinarily be prohibited in the absence of the COVID-19 pandemic.”[5] The Commission emphasizes that such tests must be administered in a nondiscriminatory manner, i.e., mandated for all workers, and not just for those in a certain age (or ethnic, religious, etc.) group.

Note: If an employee requests an alternative method of screening due to a medical condition or due to their religion, employers should treat it as a request for a reasonable accommodation.

The Commission Cautions Against Stereotyping Older—and Younger—Workers
The Guidance stresses the Commission’s view that “the root of most discriminatory practices” is an employer’s conscious or unconscious reliance on stereotypes and assumptions about age, concerning both younger and older workers, such as an assumption that older workers “lack vigorous physical or cognitive capacity to perform a job” or that young workers are “lazy” and “lack commitment” to staying at one job for very long.

In the context of the COVID-19 pandemic, the Guidance states that such unlawful stereotyping occurs when employers require only older workers to telecommute, instead of returning to the workplace, based upon “perceptions about their risk of complication from exposure to COVID-19” due to their age. According to the Guidance, such a policy constitutes unlawful age discrimination under both the ADEA and the NYCHRL because it has an adverse, disparate impact on older workers, notwithstanding that the employer may be acting out of genuine concern for the older workers’ well-being.

The Supplemental Guidance also more broadly warns employers against making “assumptions about older workers’ interest, willingness, or capacity to work due to the health risks posed by COVID-19.” Accordingly, just as an employer may not require older employees to work remotely, they also “cannot justify [other potentially] discriminatory actions, including layoffs, by relying on stereotypes or assumptions that older workers, for example, are not ‘tech savvy enough’ to successfully telework.”

To minimize the risk of running afoul of the law, the Commission recommends that “[d]uring the pandemic, consistent with guidance from public health authorities, employers should permit employees to carry out essential job duties through telework whenever possible.”

The Guidance offers other examples of policies and practices based, at least in part, on stereotypes or assumptions that can result in disparate impact age discrimination. The following illustrations from the Guidance are particularly relevant as employers reopen or expand their business amid the pandemic:

  • Job postings and recruiting: The Guidance states that except for fellowships or training programs, employers may not “directly or indirectly express an age limitation in a job posting unless explicitly required under federal, state, or local law.” Examples of indirectly expressing an age limitation include restricting the applicant pool to only “recent college graduates” or describing the ideal candidate as a “digital native.”
  • Hiring: The Guidance states that an employer should not place a cap on job experience to exclude “overqualified” applicants, even if the employer sincerely believes that the “overqualified” applicant would be bored with the job and/or dissatisfied with the salary. Those are assumptions. According to the Commission, although such a practice does not directly reveal an employee’s age, it is likely to result in the hiring of mostly younger workers and, like the examples above, have a disparate impact on older workers.
  • Layoffs: The Guidance instructs that “[i]t is a violation of the NYCHRL when employers disproportionately lay off older workers if the employer does not have a legitimate non-discriminatory reason for the staff reduction.” While the Commission acknowledges that “corporate or organizational restructuring, downsizing, and financial considerations, such as budgetary constraints, are often legitimate business decisions,” it cautions that such considerations may not be used “as a pretext for unlawful discrimination based on age” and may be particularly problematic when the practice has a disparate impact on older workers.

The Commission Warns Against Disparately Treating Older Workers
Disparate treatment includes “being subjected to lesser terms or conditions of employment, including denials of work opportunities, demotions, or unfavorable scheduling because of a person’s age.” The Guidance states that for instance, an employer may not pass over an employee for a promotion because the new position requires extensive travel and the employer assumes that the employee, an older person, is not physically or mentally “up to the job.”

Disparate treatment may also involve more overt discriminatory behavior, such as a supervisor repeatedly addressing an older worker as “old man,” “pops,” and “grandpa,” or referring to a young worker as “kid” and “youngster.” The Guidance instructs that such treatment can rise to the level of harassment if an employee “is subjected to behavior that is demeaning, humiliating, or offensive because of [the employee’s] age.” Further, the Guidance stresses that “an employer’s single comment made in circumstances where that comment would signal discriminatory views about one’s age may be enough to constitute harassment.” The Commission also reminds employers that even a person who is not the target of such conduct but simply a witness to it may “feel its impact and have legal recourse.”

The Commission Reminds Employers That Retaliation Is Prohibited
The NYCHRL prohibits a covered employer from retaliating against a worker because that person engaged in protected activity. As the Guidance explains, protected activity includes engaging in good faith in any of the following activities: (i) opposing a discriminatory practice; (ii) complaining internally about age discrimination; (iii) filing a complaint with the Commission or another enforcement agency or a court; or (iv) “testifying, assisting, or participating in an investigation, proceeding or hearing related to an unlawful practice under the NYCHRL.” Unlawful retaliation also can occur when an employer takes adverse action “that is reasonably likely to deter [individuals] from engaging in such activities.”

The Commission Provides Suggested Best Practices
The Guidance provides a list of best practices, most of which are focused on recruitment and hiring policies and practices. For example, the Guidance recommends ensuring that job advertisements and requirements do not dissuade or prevent older workers from applying. The Guidance also recommends including age in diversity programs and providing training on implicit bias.

What New York City Employers Should Do Now

  • Review policies and practices regarding accommodations and ensure that the company is not providing accommodations only to older workers. Multistate employers should be aware that the age discrimination ban in some states and other cities also is broader than the ADEA. For example, as noted earlier, New York State’s human rights law protects individuals 18 and older from age discrimination.
  • Review and, if necessary, revise job descriptions, applications, and advertisements that either directly or indirectly seek to, or may inadvertently, elicit information about an applicant’s age, such as the year the applicant graduated high school or college. Also review such materials for “coded” language, such as “21st-Century skills,” and for exclusionary requirements, such as “no more than five years’ experience” or recommendations from colleges. To the extent possible, write job descriptions that are based on objective, job-related, and age-neutral criteria. Further, ensure that recruiters and interviewers are properly instructed on these matters.
  • Train managers and supervisors on how to avoid making employment decisions based on stereotypes and assumptions about both younger workers and older workers, as well as on how to prevent age harassment and comply with the prohibition on retaliation.

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Don’t Forget to Check, and Re-Check, the California Reopening Guidelines
Just one week after its release on July 24, California has already issued an updated version of its COVID-19 Employer Playbook for a Safe Reopening, which is intended to offer employers clear and practical guidance on how to safely reopen their businesses during the Coronavirus Disease 2019 (COVID-19) pandemic. In the latest update, employers are instructed to contact the local health department in any jurisdiction where a COVID-19 employee resides (as well as communicating with the local health department in the jurisdiction where the workplace is located) when there is an outbreak in a workplace. It defines an “outbreak” as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” The updated version also adds additional guidance for employers who are considering whether to temporarily suspend operations due to a COVID-19 infection.

In addition, on July 28, 2020, the California Department of Industrial Relations (DIR) quietly released its own “Safe Reopening FAQs for Workers and Employers,” which provides additional helpful guidance for both businesses and workers on topics such as an employer’s safety obligations, face coverings, medical (including temperature) checks, returning to work, and liability waivers.

Some highlights include:

Employer Safety Obligations

  • If a worker is diagnosed or tests positive for COVID-19, employers should follow California Department of Public Health (CDHP) guidelines for addressing a workplace outbreak, including, among other things: (1) instructing workers to stay home and requesting they notify the employer if they are having symptoms, were diagnosed, and/or are awaiting test results for COVID-19; (2) reporting to Cal/OSHA any serious injury, illness, or death from COVID-19 (even if work-relatedness is uncertain); and (3) considering testing of other workers to identify additional cases in the workplace.
  • If a worker reports they have been exposed to someone confirmed to have COVID-19 (such as in a household), the employer should recommend that the worker remain home and consult with a medical provider and/or local public health department. The employee may also be subject to a formal local quarantine order, based on the health orders implemented in a given county.

Face Coverings:

  • California employers are required to provide, at no cost to workers, safeguards, such as face coverings, when reasonably necessary to render the workplace safe. However, an employer is under no legal obligation to allow workers to use employer-provided face coverings during non-work hours away from the workplace.

Medical Checks:

  • Employers must pay workers for “all hours worked,” including time that is spent under the employer’s control (including time spent waiting in line) for any required pre-shift medical and/or temperature checks.
  • Employees who are required to conduct and submit results of their medical screenings and/or temperature checks at home, before reporting to work, may also be entitled to compensation for time spent on such tasks, depending on the degree of control over the manner and timing of the medical checks.
  • If the employee records a high temperature and is sent home as a result, the employer may also be required to pay “reporting time pay” in accordance with California law.
  • If a worker is required to use their personal cell phone as part of a medical check, the employer must pay a reasonable percentage of the cell phone bill to compensate the worker for the portion of time they are required to spend on their personal cell phone following the employer’s directions.

Returning to the Worksite:

  • The DIR affirms that if a worksite has been permitted to open and the employer has reviewed relevant industry guidance and put an appropriate plan into action, the employer may require their workers to return to the worksite, regardless of whether they have been able to perform their job functions from home.

Liability Waivers

  • Employers may not require workers to sign a form waiving minimum basic rights under the California Labor Code (such as for workers’ compensation benefits) as a condition of returning to work.

With so many updates frequently taking place, employers should ensure HR professionals and in-house counsel are remaining vigilant and monitoring the rapidly evolving guidance.
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Executive Order Creates Rebuttable Presumption for COVID-19 Workers’ Compensation Claims in Connecticut
On July 24, 2020, Connecticut Governor Ned Lamont signed Executive Order 7JJJ, which creates a rebuttable presumption that a COVID-19 diagnosis arises out of and in the course of employment for workers in certain circumstances. As in other states that have created similar rebuttable presumptions, either by executive order or statute, the Connecticut rule applies to workers’ compensation claims by “essential” workers employed in one of the state’s 16 Critical Infrastructure Sectors as defined by the Connecticut Department of Economic and Community Development (DECD).

WHAT DOES AN EMPLOYEE NEED TO ESTABLISH TO QUALIFY FOR THE PRESUMPTION?
Under the order, an employee is required to satisfy the following in order for the presumption to apply:

  1. The employee must file a workers’ compensation claim.
  2. The employee must have tested positive for COVID-19 or been diagnosed with COVID-19 based on their symptoms.
  3. The employee must provide the employer with a copy of the positive test result or written diagnosis of COVID-19.
  4. The employee must have lost one or more days of work due to COVID-19 between March 10, 2020 and May 20, 2020.
  5. The COVID-19 diagnosis must have been confirmed by a positive lab test, or symptoms must have been diagnosed as COVID-19, within three weeks of the missed work day(s).
  6. The employee must have been directed by their employer to work outside of the home at least one of the 14 days prior to missing work, and there was no work-at-home option.
  7. The employee must have been employed by an essential employer, as deemed by the DECD pursuant to Executive Order 7H.

Pursuant to Executive Order 7H, the DECD has defined “essential business” as follows:

  1. Essential workers in the 16 Critical Infrastructure Sectors, as defined by the federal Department of Homeland Security unless otherwise addressed in a prior or future executive order pertaining to the existing declared public health and civil preparedness emergency.
  2. Healthcare and related operations including:
    • biotechnology therapies
    • consumer health products and services
    • doctor and dentist offices
    • elder care, including adult day care
    • health care plans and health care data
    • home health care workers or aides
    • hospitals
    • manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development
    • medical marijuana dispensaries and producers
    • medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services
    • medical wholesale and distribution
    • nursing homes, or residential health care facilities or congregate care facilities
    • pharmacies
    • physical therapy and chiropractic offices
    • research and laboratory services, including testing and treatment of COVID-19
    • veterinary and animal health services
    • walk-in-care health facilities
  3. Infrastructure including:
    • airports/airlines
    • commercial trucking
    • dam maintenance and support
    • education-related functions at the primary, secondary, or higher education level to provide support for students, including distribution of meals or faculty conducting e-learning
    • hotels and other places of accommodation
    • water and wastewater operations, systems, and businesses
    • telecommunications and data centers
    • transportation infrastructure including bus, rail, for-hire vehicles and vehicle rentals, and garages
    • utilities including power generation, fuel supply, and transmission
  4. All manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses.
  5. Retail including:
    • appliances, electronics, computers, and telecom equipment
    • big-box stores or wholesale clubs, provided they also sell groceries, consumer health products, or operate a pharmacy
    • convenience stores
    • gas stations
    • grocery stores including all food and beverage retailers
    • guns and ammunition
    • hardware, paint, and building material stores, including home appliance sales/repair
    • liquor/package stores and manufacturer permittees
    • pharmacies
    • pet and pet supply stores
  6. Food and agriculture, including:
    • farms and farmer’s markets, including urban farms and community gardens
    • food manufacturing, processing, storage, and distribution facilities
    • nurseries, garden centers, and agriculture supply stores
    • restaurants/bars (provided compliance with all applicable executive orders is maintained)
  7. Services including:
    • accounting and payroll services
    • animal shelters or animal care or management, including boarding, grooming, pet walking and pet sitting
    • auto supply, repair, towing, and service, including roadside assistance
    • bicycle repair and service
    • building cleaning and maintenance
    • car washes
    • child care services
    • critical operations support for financial institutions
    • financial advisors
    • financial institutions, including banks, credit unions, and check cashing services
    • funeral homes, crematoriums, and cemeteries
    • golf courses and driving ranges
    • insurance companies
    • laundromats/dry cleaning
    • legal and accounting services
    • mail and shipping services
    • marinas and marine repair and service
    • news and media
    • outdoor tennis per USTA guidance
    • real estate transactions and related services, including residential leasing and renting
    • religious services (subject to Executive Order 7D limiting gatherings to 50 people)
    • storage for Essential Businesses
    • trash and recycling collection, hauling, and processing
    • warehouse/distribution, shipping, and fulfillment
  8. Providers of basic necessities to economically disadvantaged populations including:
    • food banks
    • homeless shelters and congregate care facilities
    • human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support social service agencies
  9. Construction including:
    • all skilled trades such as electricians, HVAC, and plumbers
    • general construction, both commercial and residential
    • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
    • planning, engineering, design, bridge inspection, and other construction support activities
  10. Services necessary to maintain the safety, sanitation and essential operations of all residences and other buildings (including services necessary to secure and maintain non-essential workplaces):
    • building cleaners or janitors
    • building code enforcement
    • disinfection
    • doormen
    • emergency management and response
    • fire prevention and response
    • general maintenance whether employed by the entity directly or a vendor
    • home-related services, including real estate transactions, closings, appraisals, and moving services
    • landscaping services
    • law enforcement
    • outdoor maintenance, including pool service
    • pest control services
    • security and maintenance, including steps reasonably necessary to secure and maintain non-essential businesses
    • state marshals
  11. Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:
    • billboard leasing and maintenance
    • child care services
    • essential government services
    • government owned or leased buildings
    • information technology and information security
    • logistics
    • technology support
  12. Defense and national security-related business and operations supporting the U.S. government or a contractor to the U.S. government

HOW DO EMPLOYERS REBUT THE PRESUMPTION?
The employer may rebut the presumption by filing a Form 43 (denial) denying the claim on the ground that the employee’s COVID-19 illness was not contracted on the job. At a formal hearing, the employer will have the burden of proving the same.

If the employee has not established above requirements, the employer should file a Form 43 specifically denying that the presumption applies, along with any other applicable defenses to the underlying claim. It is important for the employer to take note that in the executive order, Gov. Lamont stated that “an employee who has contracted COVID-19 but who is not entitled to the presumption … shall not be precluded from making” a claim. As an employee can still file a claim even if they are not eligible for the rebuttable presumption, we encourage employers to investigate any COVID-19 claims swiftly and thoroughly, particularly where the employers follow established safety precautions and are actively documenting their efforts to minimize exposure and spread of COVID-19.

ARE THERE ANY OFFSETS OF INDEMNITY BENEFITS FOR COVID-19-SPECIFIC PAID SICK LEAVE BENEFITS?
The employer can reduce the amount of weekly indemnity benefits paid under the workers’ compensation system by any amount of paid sick leave available to the employee through the Emergency Paid Sick Leave Act set forth in sections 5101 et seq. of the Families First Coronavirus Response Act or any other COVID-19-specific paid sick leave program that is separate from any accrued paid time off regularly available to the employee.

ARE THERE ANY INCREASED PENALTIES FOR ADVERSE EMPLOYMENT ACTIONS IN RESPONSE TO A COVID-19 CLAIM?
The executive order forbids an employer from discharging an employee for filing a claim or deliberately misinforming or deliberately dissuading an employee from filing a claim. The order reiterated the penalties found in C.G.S. Section 31-290 for violation of the above, to include: job reinstatement, back wages and benefits, attorneys fees, and costs (civil actions only) and punitive damages (civil actions only).
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New Mexico Implements Employer Reporting Rule for COVID-19 Cases
In addition to other measures New Mexico is taking to try to control the coronavirus pandemic, effective August 5, 2020, the Occupational Health and Safety Bureau of the New Mexico Environment Department (NM OSHA) implemented an emergency amendment to its injury and illness reporting regulation, 11 NMAC §5.1.16. The new provision, which will remain in effect for 120 days unless it is made permanent, requires employers in New Mexico to report to NM OSHA any case in which an employee tests positive for coronavirus disease 2019 (COVID-19) within four hours of the employer learning about it. Notably, a Department spokesperson confirmed that the Department interprets the reporting requirement to cover any employee who reports a positive test, including employees whose illness is not work-related. This four-hour reporting requirement is so far the most stringent reporting rule an OSHA agency has enacted.

General Injury and Illness Reporting Requirements
In 2014, federal OSHA updated its Rule (29 CFR §1904.39(a)) that requires employers to report certain injuries and illnesses to OSHA. Specifically, any work-related fatalities must be reported within eight hours, and any work-related inpatient hospitalization, amputation, or loss of an eye must be reported within 24 hours. States that operate their own occupational safety and health plans, including New Mexico, were required to adopt measures at least as protective as this rule. Accordingly, in 2015, New Mexico updated its reporting rule to include these same obligations.

On May 19, 2020, federal OSHA issued updated guidance addressing when employers have to record an employee case of COVID-19 on their OSHA 300 log. As with reportable injuries and illnesses, an employee’s COVID-19 infection must be “work-related” to need to be recorded, and that determination may not be obvious in most workplace settings. OSHA has not provided specific guidance about when employers must report COVID-19 cases.

New Mexico’s emergency rule—which requires reporting of COVID-19 cases that are not necessarily work-related and within four hours—therefore exceeds these requirements.

The Bottom Line
Based on this new rule, employers in New Mexico need to implement processes to ensure reports of employees testing positive for COVID-19 are made timely. This includes making sure supervisors at all locations know to contact a central person in the company who can make the report whenever they hear that an employee tests positive for COVID-19.

The report can be made by email, telephone or facsimile to NM OSHA at nmenv-osha@state.nm.us; by phone (505) 476-8700; or by fax (505) 476-8734.
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Georgia COVID-19 Pandemic Business Safety Act goes into Effect
The Georgia COVID-19 Pandemic Business Safety Act (the “Act”) went into effect upon the Governor’s signature on Wednesday, August 5, 2020. The full language of the Act is available here. This law limits a business’s liability for claims based on the transmission of COVID-19 at its premises unless a plaintiff can meet the high bar of establishing gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm on the part of a business. This protection is automatic for Georgia businesses, including healthcare facilities and healthcare providers (which are separately listed in the Act).

The Act provides for an additional layer of protection by adding a rebuttable presumption that any person entering a business’s premises has “assumed the risk” associated with COVID-19 transmission. A business creates this presumption by posting signs in at least 1-inch Arial font at its entrances with the following language:

Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

The signs must be “apart from any other text,” meaning this is the only message conveyed on the signs. The Act does not expressly state that it is necessary to post signs at all entrances, but the most cautious approach would be to do so. It is also a good idea to take pictures of the posted warnings to document that the business complied with this requirement.

Businesses can also invoke the rebuttable presumption by including on “any receipt or proof of purchase for entry” to a premises the following language, in at least ten-point Arial font, placed apart from any other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

Businesses that issue tickets or wristbands for entry can include this language on those entry items to meet the requirements of the law.

Notably, on its face, the Act indicates that its protections would apply to claims by employees because the protections apply to any person that would bring a claim based on transmission of or exposure to COVID-19. That said, the Act makes clear that it does not impact Georgia’s workers’ compensation laws. Therefore, the Act will not affect the ability of an employee to bring a traditional worker’s compensation claim relating to the transmission of or exposure to COVID-19. The issues associated with such a claim are beyond the scope of this article, but AGG’s Employment Team can provide further guidance. Further, there may be nuanced situations in the employment context that warrant further discussion with counsel before relying on the Act’s protections as a matter of policy.

The Act includes a sunset provision so that the protections only apply to claims “accruing until July 14, 2021.” Because this sunset provision sets the deadline based on the accrual of claims, the protections will apply to claims asserted after July 14, 2021, so long as the alleged transmission or exposure happened before then.
https://www.agg.com/news-insights/publications/georgia-covid-19-pandemic-business-safety-act-goes-into-effect/

Return to Work COVID-19 Testing Considerations
As employees increasingly transition back into the physical workplace, employers have begun to grapple with whether and how to deploy COVID-19 diagnostic testing as a return-to-work solution. Many employers want to avoid extended employee quarantine or isolation requirements that prevent their employees from returning to the office for weeks and disrupt their operations. But is this potential solution legal? And is it effective? Below we discuss practical considerations for employers considering a return to work COVID-19 testing strategy.

Is it legal?
For the most part, yes. While the Equal Employment Opportunity Commission (“EEOC”) has approved of COVID-19 diagnostic testing in the workplace generally, it has, as explained further below, recently modified its guidance to discourage its use as a return to work strategy. Further, approaches vary widely across the states and localities that have taken a position on return to work testing. For example, while Illinois permits its use, an ordinance in Dallas, Texas prohibits return to work testing.

Is it effective?
It depends. Before mandatory vaccination becomes an option (which we wrote about here), requiring employees to test negative for COVID-19 before returning to work may at first glance seem like a reasonable way to ensure employee attendance while keeping the workplace safe. For some employers, particularly those that are able to test frequently, quickly and accurately, this may be a sound approach. But for other employers, they will have to weigh their options carefully. Recent updated guidance from the CDC, employee complaints about the invasiveness of testing, and very real ongoing concerns about testing availability and accuracy may militate against pursuing a testing strategy at this time.

More specifically, recent guidance from the CDC discourages a test-based strategy as a primary solution finding that a symptom-based screening strategy is sufficient to identify when an individual with symptoms may return to work. However, if an employer nevertheless decides to proceed with diagnostic testing as part of their COVID-19 mitigation strategy, the CDC recommends having employees test negatively twice with the two consecutive tests coming at least 24 hours, before returning to work.

State and local guidance does not necessarily provide additional clarity on how best to proceed. For example New York State’s guidance only addresses situations where an employee experiences symptoms upon arrival at work or while at the office, advising that in those instances an employee may return to work with a single negative COVID-19 test (in contrast to the CDC’s recommended two consecutive negative tests). But New York’s guidance does not currently address whether testing is a solution to a host of other scenarios—for instance, where an employee’s remote screening indicates recent symptoms, known exposure, or where an employee traveled to a place with significant community spread. In those instances, the New York guidance does not incorporate testing as a return to work solution, instead asserting that individuals who have had known close contact with someone who has COVID-19 (i.e. within 6 feet of someone for ten or more minutes) should (1) isolate for 10 days from the onset of symptoms (if the individual has symptoms); or (2) isolate for 14 days from the date of exposure (if the individual does not have symptoms). New York’s guidance also states that employees who test positive for COVID-19 must complete at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic.

Putting all the guidance aside for the moment, testing may prove futile in many cases regardless. First, COVID-19 reportedly can take 2-14 days after exposure to become identifiable in a diagnostic test, and thus, employees who test negative may return to work and later discover they have indeed been infected. And in other cases, testing may prove futile if an employee cannot access a test readily, and thereafter receive their results in a timely manner, which effectively sidelines them from returning to the office anyway. Further, there is also the possibility of a false negative, particularly when an employee takes a rapid test. Other employer considerations include how COVID-19 testing, and the resulting disciplining of employees if they refuse to be tested, might affect overall employee morale.

Employers should consider these issues and weigh them against the vitality of other preventative measures such as whether an employee can telework or take a paid or unpaid leave in lieu of returning to work. If the employee must return to work, employers should consider using other safety measures (whether in lieu of or in addition to testing), such as symptom/exposure questionnaires, temperature checks and workplace social distancing requirements.

What if an employee refuses to take a diagnostic test?
In selecting any of these options, employers should consider creating a policy or procedure that, among other things, discloses the circumstances under which an employee must take a test, the specific test or tests that the employer will accept, and the consequences of an employee’s refusal to be tested prior to returning to work. Employers should also consider whether they will afford an employee the opportunity to take an unpaid leave of absence where they refuse to take a test in lieu of a disciplinary action.

Further, before resorting to disciplinary measures, employers should first consider the nature of the employee’s objection. If the employee is simply annoyed or frustrated about the testing policy, disciplinary measures may be appropriate as the employees is failing to adhere to a company safety policy. However, employers should evaluate whether the employee is asking for a disability accommodation, and if so, should consider alternative options to testing.

A Note About Isolation Practices and Employee Abuses
In jurisdictions that do not require employees to isolate after potential symptoms or exposure, employers that need employees to work in the office may be turning to COVID-19 diagnostic testing as an alternative or supplement to isolation practices they consider impractical or prone to abuse. Indeed, some employers are facing scenarios in which employees attempt to take advantage of company isolation policies in an effort to take extended time away from the workplace.

Employers facing this situation may consider implementing a diagnostic testing strategy (where permitted and feasible) but should also consider addressing the various employee abuse scenarios that might unfold and provide cautionary warnings to employees. For example, New York, New Jersey, Massachusetts, and some other jurisdictions are requiring individuals who travel to certain states with troublesome COVID-19 metrics to quarantine for 14 days upon their reentry. If an employee is planning travel to a “hot spot” on vacation to avoid returning to work, the employer should consider warning the employee that if they are unable to telework upon their return, they may be required to take additional paid time off or even unpaid leave. Alternatively, employers facing operational difficulties if employers are away for multiple weeks may wish to revisit paid time off approval processes or condition approval of company-provided vacation time on an employee’s ability to return to work promptly after traveling. In short, employers may have several options to address employees’ abuse of isolation rules that do not necessarily have to involve the implementation of diagnostic testing.

Final Considerations
If an employer does decide to implement a testing strategy, it should ensure that its COVID-19 testing and screening protocols and policies adhere to relevant state and local guidelines, which vary greatly by jurisdiction. Employers should further ensure they are tracking other practical aspects of testing. For example, employers must safeguard employee medical records in accordance with Americans with Disabilities Act (“ADA”) requirements and the privacy requirements of various states and localities. When choosing a diagnostic test, employers must also ensure that the test is reliable and accurate—for instance, some rapid testing kits now entering the market may not meet the EEOC’s reliability and accuracy standards. Similarly, any testing strategies must be uniformly applied so as not to cause disparate treatment amongst employees. Employers should refer to the EEOC’s ADA guidance, to ensure non-discriminatory application of testing policies.
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COVID-19 RELATED NEWS FROM JULY 2020

COVID-19 FAQs for New York Employers
https://www.lexology.com/library/detail.aspx?g=f6ce04a5-5d29-4727-8d96-5df1bf9d1f85&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

California’s COVID-19 Employer Playbook
https://www.lexology.com/library/detail.aspx?g=f5771264-9da2-4fb3-a70b-6cef796aad8c&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

Virginia Adopts Workplace Safety Standards for the Pandemic—May be Coming to a State Near You
https://www.lexology.com/library/detail.aspx?g=a7a33668-feb6-4bd8-808c-767cbc45053c&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

Virginia Enacts the First Comprehensive COVID-19 Workplace Safety Standards
https://www.lexology.com/library/detail.aspx?g=32e37d2f-8baf-402c-9ed6-7e96dd24b768&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

Minnesota to Require Face Coverings, Joining Its Cities
https://www.lexology.com/library/detail.aspx?g=33558da2-2db0-4705-a295-a358926f3f01&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

Michigan Governor Updates Reopening and Workplace Safety Executive Orders
https://www.lexology.com/library/detail.aspx?g=67f9d5e0-310f-4744-adb5-d0fce5d6c498&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

COVID-19: Chart of State Immunity Statutes
https://www.lexology.com/library/detail.aspx?g=64011403-4a5a-4a3a-b060-c819b7b0f62b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-03&utm_term=

Virginia Issues Guidance in Support of Emergency Temporary Standard for the COVID-19 Pandemic
https://www.lexology.com/library/detail.aspx?g=bd92394f-7013-405a-9142-24f6a795c4ef&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

Connecticut Creates Rebuttable Presumption that COVID Infection was Work-Related for First Months of the Pandemic
https://www.lexology.com/library/detail.aspx?g=b72cd8c3-79c7-43fc-ab0a-26c828d948ee&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

Virginia Adopts Workplace Safety and Health Standards for COVID-19
https://www.lexology.com/library/detail.aspx?g=c2fd48a5-a9fc-43db-8a54-819a5fa37868&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

Testing, Testing…The CDC Details When Employers Should Test for COVID-19 and Other Health Screening Reminders
https://www.lexology.com/library/detail.aspx?g=19c3b285-20fa-499f-a9f8-132b1d4762e5&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

DOL-WHD Releases FLSA, FMLA, and FFCRA Guidance Relating to COVID-19 and Work From Home Issues
https://www.lexology.com/library/detail.aspx?g=58818811-c43e-48c5-939b-fd421e82cbd5&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

FDA Authorizes First Diagnostic Test for Screening People Without Known or Suspected COVID-19 Infection
https://www.lexology.com/library/detail.aspx?g=0484c077-e967-4a3b-8a87-1832d1e6be2d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

Adding COVID-19 to the Informed Consent Process: A Q&A for Health Care Providers
https://www.lexology.com/library/detail.aspx?g=169f67f1-7e35-4085-91a1-9e961980d3bc&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

COVID-19 Safety Plan Compliance Alert: Indiana’s Face Covering Mandate
https://www.lexology.com/library/detail.aspx?g=7ed2de4d-7dd0-4de7-94c3-f807b51a0fba&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-31&utm_term=

New-The COVID-19 Employer Playbook Considerations for Employee COVID-19 Testing
https://www.lexology.com/library/detail.aspx?g=cc53b73e-efef-422f-adc1-5d646aed1036&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

COVID Alert: California Releases “Employer Playbook for a Safe Reopening”
https://www.lexology.com/library/detail.aspx?g=17bb2c93-5779-4400-8626-7bc907b9f9f7&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

Question of the Day: What do I need to know about the Minnesota Governor’s Mandatory Face Covering Order?
https://www.lexology.com/library/detail.aspx?g=7d7b723b-a54c-4706-b64c-864c95a8d61b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

Avoiding Coronavirus Discrimination Claims in Retail and Hospitality
https://www.lexology.com/library/detail.aspx?g=a8d28cfc-b60c-4825-b5e4-a4e73187d51a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

July 2020 COVID-19 Pandemic Update for Nevada Businesses
https://www.lexology.com/library/detail.aspx?g=17ad388a-bafc-47e3-920b-f4a523a50362&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

Change in Return to Work Guidance
https://www.lexology.com/library/detail.aspx?g=8fec1a05-79fa-4f8a-8cb0-d0258a067530&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

Employee Testing for COVID-19: What Works Now for Your Worksite?
https://www.lexology.com/library/detail.aspx?g=65233b46-649e-4420-b6ea-f44e5a495de7&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-30&utm_term=

Troutman Pepper Weekly Consumer Financial Services COVID-19 Newsletter
https://www.lexology.com/library/detail.aspx?g=405b04c8-440e-4203-9036-d9b0a458416b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

TROUTMAN PEPPER COVID-19 RESOURCE CENTER
https://covid19.troutman.com/

Out in Public in Pennsylvania? Face Coverings Required!
https://www.lexology.com/library/detail.aspx?g=8f30dba6-1475-4362-9f03-09c8e2386576&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

Illinois Reissues and Extends Several COVID-19 Executive Orders
https://www.lexology.com/library/detail.aspx?g=120a30a9-1f29-422f-b680-210f868907dd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

Time to Update (or Implement!) Your COVID-19 Safety Plan
https://www.lexology.com/library/detail.aspx?g=6c3077ba-f8d0-41e5-a05b-5237ef5745c8&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

California Releases a New Safety Handbook for Employers
https://www.lexology.com/library/detail.aspx?g=02c869ed-9a14-4755-81b8-bed712e02b64&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

Colorado Amends Public Health Order to Require Certain Employees of Critical Businesses to Wear Masks, Gloves
https://www.lexology.com/library/detail.aspx?g=f6f6e096-e4de-455f-9fde-eed74568a1da&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

CDC Updates Isolation Guidelines; COVID-positive Employees May Return to Work Sooner
https://www.lexology.com/library/detail.aspx?g=675334fc-c95c-47b3-a3c4-03bd8857887a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

Considerations for Employers Implementing Face Mask Policies
https://www.lexology.com/library/detail.aspx?g=7f3842c2-640f-48c1-b580-b365c5b6ca28&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-29&utm_term=

Global: What Do Employers Need to Consider When Reopening?
https://www.lexology.com/library/detail.aspx?g=e32e3263-a209-459e-8af1-a1c1285438de&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-28&utm_term=

This is for the record.

For The Public Record is a monthly blog featuring thought leadership from the most seasoned experts at ClearStar, across all functions of the background screening process. Click here to subscribe.

 


Nicolas Dufour

Nicolas Dufour - EVP and General Counsel, Corporate Secretary

Nicolas Dufour advises ClearStar’s management team on all legal matters, issues, and risks impacting the organization. He provides legal guidance, legal management, and operating standards related to business; state and federal laws; regulatory; and legal strategic matters. Nicolas has more than twenty-five years of legal practice experience and fifteen years of experience in the background check industry.

Before joining ClearStar, he was Chief Regulatory Counsel at First Advantage Corporation, where he oversaw litigation matters and regulatory enforcement investigations related to privacy and data security issues.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.

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