Key Takeaways | Preparing for the Unknown: How to Anticipate and Address Future Workplace Problems - McDermott Will & Emery

Key Takeaways | Preparing for the Unknown: How to Anticipate and Address Future Workplace Problems


The COVID-19 pandemic has put unprecedented strain on organizations of all sizes across all industries. The uncertainty of the “new normal” is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, you need innovative but practical solutions.

In response to the challenges that employers now face, McDermott developed a six-part webinar series that will take a deep dive into all of the issues at stake–from workplace safety to employee privacy, as well as strategies to mitigate risk and respond to the inevitable surge in litigation. By the end of our program, you will possess the tools necessary to bring actionable solutions back to your organization and protect your most critical assets: people and reputation.

The fifth module in our toolkit focuses on strategies to anticipate and address future workplace problems once your employees return to work.

View the full webinar here.

In Depth

1. As businesses begin to reopen and employees return to the workplace, it is a good time to revisit your emergency response plan to handle any employee who reports that he/she has tested positive for COVID-19. In our informal webinar poll, more than 80% of respondents indicated they had general guidelines or a written plan in place. An emergency response plan should consider seven things. First, the employee should be asked to stay home, or go home if he/she reported to work, and then follow the directives of healthcare providers and CDC guidelines. You should then interview the employee on any close contacts during the 14-day period prior to the positive test or presumption of a positive test, and identify all areas within the workplace where the employee was physically present. Second, implement emergency cleaning and sanitation of those workspaces. Shut down those areas for 24 hours or as long as possible to minimize the risk to those cleaning the area. Third, follow your communication plan to contact those employees, customers, vendors and guests who were or may have been directly exposed. Any employee that was directly exposed should also be required to self-isolate for 14 days before he/she is allowed to return to work. It is also advisable to communicate to the general workforce—this is an opportunity to showcase that your organization takes these matters seriously and has an emergency response plan in place specifically for situations like this. Fourth, when communicating with employees, avoid disclosing the identity of the employee diagnosed or presumed to have COVID-19 and remind your staff that medical information is private. Fifth, administer leave for employees who have tested positive for COVID-19 or are presumed to have COVID-19 appropriately. Consider developing an internal checklist of all possible ways the leave can be classified (FFCRA paid sick leave, FMLA, leave as a reasonable accommodation to disability under the ADA, and/or under company sponsored sick leave benefits). Sixth, employees who tested positive or who were presumed to be COVID-19 positive should not be reinstated until they meet the criteria to discontinue home isolation as enumerated by CDC guidelines. Seventh, considerwhether this is a reportable offense.

2. In the context of workers’ compensation claims, employers should follow best practices for reporting and if an employee alleges that he/she was infected at work, follow the standard approach and report the case to your insurance carrier. If the employee does not claim that he/she was infected at work, review all circumstances to reach a reasonable conclusion. It is advisable to report a positive case if an employee works in a job where there is a high risk of transmission or if additional employees at the workplace also test positive and there is direct evidence they came into contact with the first sick employee. There are also OSHA requirements for recording workplace exposure. Effective May 19, 2020, OSHA announced that a confirmed case of COVID-19 is a recordable illness if it involves death, days away from work, restricted work, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a licensed health care professional. OSHA will expect employers to make a “reasonable and good faith inquiry” if it is a work-related event, and employers will not be expected to record a positive case unless the employer determines it is more likely than not that exposure in the workplace caused a causal role.

3. The COVID-19 pandemic is an unprecedented event and caught many employers and employees off guard. Employers should take steps now to ensure they can mobilize quickly and make decisions in the event of another shutdown. During this reopening phase, there are many opportunities for businesses to evolve and adapt in preparation for a potential “second wave” or future pandemic/crisis. Employers may want to designate a primary lead for COVID-19 issues in the workplace, to aid in delivering a consistent message to the workforce and to field general Q&A from employees on the company’s plans to address COVID-19 exposure, handle OSHA issues and update guidelines/policies/procedures. Also consider whether you are equipped to have employees telework in order to permit essential business functions to continue should there be a second wave or shutdown. This will require employers to be cognizant of rules and regulations, such as tax and paid sick leave laws, in jurisdictions where your employees perform work from home. Determine what infrastructure and technology investments might be needed—for example, invest in electronic timekeeping so employees can record hours outside of the office, or have a system in place to provide all employees the technology equipment necessary to do their jobs (e.g., laptops, etc.). Employers may also want to review their data security policies in the event someone loses a workplace device with sensitive information and consider whether to outsource or hire IT support to handle the influx of inquiries if the entire workforce must telework. In addition to addressing a future outbreak, preparing these options for your workforce can also help you respond to reasonable accommodation requests from employees.

4. Employers should prepare for potential audits by the government and the Plaintiffs’ Bar related to compliance with the Families First Coronavirus Response Act (FFCRA). Audits typically follow an employee complaint, so employers should prepare now by documenting compliance. The FFCRA provides for paid leave to employees who are unable to work or telework for qualifying COVID-19 related reasons, along with expanded family and medical leave to care for a child In turn, employers benefit from the allowed tax credits. The DOL (and Plaintiffs’ Bar) could audit:

  • Required posters and notice to employees: notices were to be posted by April 1 through December 31, 2020—an employer may satisfy this requirement by emailing or mailing this notice to employees or posting on its intranet.
  • Coverage: is your business covered by the Act because you have 500 or fewer employees? Are you an integrated employer that has more than 500 or more employees across interrelated entities? If you have any concerns about whether your business is a covered entity, you should consult outside counsel for written guidance to fend off any future claims that you willfully violated the statute.
  • Compliance with leave provisions: did you provide the benefits you were required to under the statute
  • Recordkeeping: The DOL provided some guidance on information you can seek from an employee requesting leave, but the FFCRA does not expressly provide that you may request certification, including a doctor’s note. The IRS indicated that in order to receive the tax credits, employers can seek a written statement supporting the need for leave. Best practice is to use a form for leave requests and note that “additional documentation may be required” in the event further clarity is needed. Also remember to follow DOL and IRS record retention requirements and state paid leave recordkeeping requirements.

Employers should be aware that company-wide violations could involve significant liability, including liquidated/double damages for willful violations, criminal prosecution with fines and possible imprisonment. And employers run the risk of class action litigation and retaliation claims from employees who must generally to be returned to substantially similar positions after taking leave.

5. Many businesses who took loans under the Paycheck Protection Program (PPP) have been working to ensure they have the procedures and mechanisms in place so that those loans can be forgiven. PPP loan compliance will be audited by the SBA, the DOJ, the SEC and the IRS. Any business receiving more than $2M in PPP loans will be fully audited, and smaller loans may be spot-checked. SBA and DOJ will audit your borrowing eligibility, and employers may want to obtain written guidance from outside counsel to show they applied for the loan in good faith. They will also audit loan amounts and use of proceeds to ensure compliance. In addition, the SBA has made it clear that employers must certify (and provide supporting documentation) that the uncertainty of the current economic conditions made the loan request necessary to support the ongoing operations of the business. Be sure to preserve all documents, including payroll records, financials and expense payment records, applicable tax forms and proof of restoring FTEs and/or salary. All documents should be retained for six years after the loan is fully forgiven or fully repaid.