COVID-19 Agency Update: OSHA Issues Guidance on Reopening for Non-Essential Businesses; EEOC Addresses Antibody Testing and Reasonable Accommodations, Harassment and Discrimination; SBA Provides New PPP Application
Several federal agencies have recently issued additional COVID-19 guidance of interest to employers, including the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Small Business Administration (SBA). We summarize these developments below.
OSHA’s Guidance on Reopening for Non-Essential Businesses. On June 18, 2020, OSHA issued “Guidance on Returning to Work” for non-essential businesses. The guidance sets forth three phases for reopening, and OSHA states that “During each phase of the reopening process, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.” The phases are as follows:
- Phase 1: Businesses should consider making telework available, when possible and feasible. For employees who return to the workplace, consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e., flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Businesses should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.
- Phase 2: Businesses should continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers as identified above in Phase 1.
- Phase 3: Businesses resume unrestricted staffing of work sites.
The guidance goes on to identify workplace principles with related (non-exhaustive) suggestions that should be addressed in reopening plans, based on evolving conditions:
- Hazard assessment to determine when, where, and how exposure to COVID-19 may occur, as well as possible sources. This includes assessing job tasks and categories for possible exposure, including from the public or co-workers, and considering community outbreak conditions.
- Hygiene practices for hands, respiratory etiquette, cleaning and disinfection. Employers should provide handwashing facilities and hand sanitizer, and conduct enhanced cleaning of high-traffic areas and frequently-touched surfaces using EPA-registered disinfectants.
- Social distancing practices to maintain at least 6 feet of distance between all people. Such practices can include limiting business occupancy, demarcation of six-foot zones in areas where people congregate, posting reminders to keep appropriate distance, and posting directional signs in restricted width hallways and corridors.
- Identification and isolation of sick employees to include self-monitoring, screening, and stay-home requirements for illness. Employers should establish a protocol for managing those who become ill in the workplace, including isolation, cleaning and disinfecting areas occupied by the sick person, contact tracing, and notification of those possibly exposed.
- Return to work after illness or exposure by following CDC guidance on discontinuing self-isolation or self-quarantine. Those exposed to COVID should self-monitor for potential symptoms in accordance with CDC guidance.
- Controls, based on the hazard assessment, including engineering (e.g. physical barriers/shields, ventilation) and administrative controls (e.g. staggered shifts, limited capacity, virtual meetings, use of face coverings), safe work practices, and personal protective equipment (PPE, for which employers must comply with OSHA standards and guidance). OSHA reiterates that cloth face coverings are not PPE, as they protect others and not the wearer.
- Workplace flexibilities including telework and sick leave.
- Training on the signs, symptoms, and risk factors of COVID-19, exposure risks, and prevention. OSHA specifically recommends training on the use of face coverings, and notes that training is required for PPE (putting on, taking off, using, cleaning, maintaining, storing, disposing, and limitations).
- Anti-retaliation for employees adhering to these guidelines or who raise workplace safety and health concerns. Supervisors must be familiarized with workplace flexibilities, HR policies and procedures, and general workers’ rights.
The guidance also identifies applicable OSHA workplace standards, providing a list of these standards in Appendix A: exposures to COVID-19 and chemicals, hazard/exposure assessment, implementation program, controls, housekeeping, training, recordkeeping, and retaliation.
In addition, the guidance also provides some FAQs. Of particular and new interest, OSHA notes that employers who create records of health screening or temperature checks might be governed by the Access to Employee Exposure and Medical Records standard, which requires employers to retain such records for the duration of each worker’s employment plus 30 years, in addition to following confidentiality requirements. This requirement applies if the records are made or maintained by a physician, nurse, or other health care personnel, or technician.
The other FAQs, which are less groundbreaking, are summarized as follows:
- Employers may conduct work site COVID-19 testing, although OSHA warns that negative results should be treated cautiously given current testing limitations.
- Employers may conduct temperature checks and other health screening. OSHA reminds employers to maintain confidentiality of health-related information as required by the Americans with Disabilities Act. OSHA recommends that screening efforts should be conducted at home, with workers remaining at home if they show symptoms. It also warns that not all those infected with COVID-19 will have a fever or other symptoms.
- Those conducting such screenings and checks must be protected from exposure.
- OSHA refers employers to EEOC guidance on what other labor, disability and employment laws govern health screening and medical issues.
- As for when those infected by COVID-19 can return to work, OSHA refers to CDC guidance, noting that it may be adapted by state and local health departments to respond to rapidly changing local circumstances.
- In order to determine if employees need PPE (such as gloves, face shields, and surgical masks), employers must conduct a hazard assessment in accordance with OSHA’s PPE standard. OSHA suggests employers consider modifying worker interaction to reduce the need for PPE, in light of equipment shortages. If PPE is necessary, employer should consider either delaying the work tasks until the risk of COVID-19 subsides or utilizing alternative means to accomplish the business needs. If PPE is required but unavailable, the tasks must be discontinued. OSHA reiterates that cloth face coverings are not PPE, but employers should consider requiring them to reduce the spread of infection.
Finally, OSHA provides information about compliance assistance generally, including consultation services, training, and educational materials, as well as contact information for its various regional offices.
EEOC Updates its COVID-19 Guidance to Address Antibody Testing, Accommodations for High Risk Family Members/Pregnancy/Age, Caregiver Discrimination, and Harassment. Over the past several weeks, the EEOC updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to address new questions about antibody testing, as well as pregnant and older workers.
- Antibody testing. The EEOC states that employers may not require antibody testing before permitting employees to re-enter the workplace. Antibody testing is a medical examination, which, under the American with Disability Act, must be “job-related and consistent with business necessity.” In light of the Centers for Disease Control and Prevention’s earlier guidelines that antibody testing “should not be used to make decisions about returning persons to the workplace,” the EEOC states that such testing does not meet the ADA’s standard for medical examinations. (This is in contrast to COVID-19 viral tests for active infection, which the EEOC has stated meet the ADA standard.)
- Alternative screening methods. A request for an alternative screening method due to a medical condition is a request for accommodation under the ADA or Rehabilitation Act. The EEOC notes that if the requested change is easy to provide and inexpensive, an employer may choose to make it available to anyone without going through the interactive process. If the requesting employee’s disability is not obvious or known, however, the employer is entitled to ask for information to establish the existence of a disability and its limitations, such that an accommodation is required. The employer may then determine if that accommodation or an alternative effective accommodation can be provided without undue hardship. Such requests may also be made for religious needs under Title VII.
- Family members at higher risk of severe illness from COVID-19. Employers are not required to accommodate a non-disabled employee due to the disability-related needs of a family member. Although the ADA prohibits discrimination based on association with a disabled individual, it does not require accommodations in order to protect an employee’s family member with a disability from potential exposure. Employers may choose to do so, however, but must be consistent in extending such flexibility in order to avoid other discrimination claims.
- Age. Although older workers may be at a higher risk of severe illness from COVID-19, employers may not involuntarily exclude employees from the workplace due to their age. On the flip side, older workers do not have a right to reasonable accommodations based on age. The EEOC notes that employers may choose to provide flexibility to workers age 65 and older, but not those age 40-65, without violating the ADEA. Older workers with underlying medical conditions may be entitled to reasonable accommodation under the ADA.
- Caregivers/Family Responsibilities. The EEOC warns employers about possible sex discrimination in granting telework, modified schedules or other benefits to employees with school-age children due to school closures during the pandemic. Employers should not make gender-based assumptions about who may have caretaking responsibilities.
- Pregnancy. As with older workers, employers may not involuntarily exclude pregnant employees from the workplace. On the other hand, pregnant employees may be entitled to accommodations under the ADA if they have pregnancy-related medical conditions. Additionally, under the Pregnancy Discrimination Act, an employer must provide job modifications like telework, scheduling or assignment changes, or leave to pregnant employees if such job modifications are provided to other employees similar in their ability or inability to work.
- Harassment. The EEOC makes several points about harassment. It cautions managers to be alert to demeaning, derogatory or hostile remarks directed to those of Asian national origin, including about coronavirus or its origins. It also notes that employers who learn about harassment of one teleworking worker by another – whether by email, calls, or video/chat platforms, must take the same actions that it would if the harassment occurred in the workplace.
- Inviting requests for flexibility. In advance of returning to the workplace, the ADA, the Rehabilitation Act, and the Age Discrimination in Employment Act all permit employers to invite employees to request flexible work arrangements, as long as employers make such information available or send a general notice to all The EEOC states that the invitation may include all the CDC-listed medical conditions that may place individuals at a higher risk of severe illness from COVID-19, and should provide instructions about who to contact, as well as an explanation that requests are considered on a case-by-case basis.
SBA Releases New PPP Loan Forgiveness Applications. Last week, the SBA and Treasury Department released two new forgiveness applications: a revised Loan Forgiveness application, implementing the PPP Flexibility Act of 2020, and a more simplified EZ Application, requiring fewer calculation and less documentation than previously.
Standard Loan Forgiveness Application Form
The revised Loan Forgiveness application is a variation on the original application introduced last month. Most of the changes are to implement the PPP Flexibility Act. The revised application includes the reduction in the percentage of loan proceeds that must be used for payroll costs from 75% to 60%.
The revised application also provides for the extended 24-week covered period in which to use loan proceeds. For borrowers utilizing the 24-week loan forgiveness covered period:
- self-employed individuals, general partners, and “owner-employees” will be capped at $20,833 (which is the 2.5 month equivalent of $100,000 annually) or the 2.5-equivalent of their 2019 annual compensation, whichever is lower;
- employees earning an annual salary in excess of $100,000 annually will be capped, for loan forgiveness purposes, at $46,154 (24/52 of $100,000).
Borrowers who received loans prior to June 5, 2020 may still elect to utilize the eight-week covered period.
The revised application also contains safe harbors exempting borrowers from loan forgiveness reduction based on a reduction in full time employee numbers if:
- they were unable to operate between February 15, 2020 and the end of the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 by the following agencies related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19: Secretary of Health and Human Services, Director of the Centers for Disease Control and Prevention, or Occupational Safety and Health Administration. (Notably, many if not all of these businesses were unable to operate due to state and local shut-down orders. Applicants must now determine for purposes of this application whether they were unable to open because of compliance with guidance or requirements from the listed federal agencies.)
- the borrower’s total FTE as of December 31, 2020 is greater than or equal to their total FTE on February 15, 2020 andtheir FTE on February 15, 2020 is greater than their average FTE between February 15, 2020 and April 26, 2020, they will be exempt from the FTE reduction calculation.
Furthermore, the application makes clear that the reduction calculation will not include:
- positions for which the borrower made a good-faith, written offer to rehire an individual who was an employee on February 15, 2020, and the borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020;
- positions for which the borrower made a good-faith, written offer to restore any reduction in hours, at the same salary or wages, during the covered period or the alternative payroll covered period and the employee rejected the offer; and
- employees who during the covered period or the alternative payroll covered period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.
The Loan Forgiveness Application Instructions set forth specifically what documentation borrowers must maintain and submit to obtain loan forgiveness.
EZ Forgiveness Application
The condensed three page EZ Forgiveness Application significantly reduces and streamlines paperwork required for borrowers eligible to use the application. Any borrower may use the EZ Application if it can certify that the borrower:
- is a self-employed individual, independent contractor, or sole proprietor who had no employees at the time of the PPP loan application and did not include any employee salaries in the computation of average monthly payroll in the loan application,
- (a) did not reduce annual salary or hourly wages of any employee by more than 25 percent during the covered period compared to the period between January 1, 2020, and March 31, 2020, and (b) did not reduce the number of employees or the average paid hours of employees between January 1, 2020, and the end of the covered period, or
- (a) did not reduce annual salary or hourly wages of any employee by more than 25 percent during the covered period compared to the period between January 1, 2020, and March 31, 2020, and (b) were unable to operate during the covered period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020, and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19.
The EZ form does not require calculations or adjustments for reductions in full time employees or salary or hourly wage reductions. Rather, the EZ form substitutes borrower certifications for such calculations. The EZ form also addresses the 8 week covered period and the new 24 week covered period as implemented by the PPP Flexibility Act.
The instructions for the EZ Application set forth the borrowers’ requirement to maintain and submit underlying documents to determine loan forgiveness amount. Notably, those eligible to use the EZ Application have less stringent document submission requirements, which should hopefully result in a more efficient loan forgiveness process.
This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-Lerts on any significant developments.