Richard Gerakitis, Partner, Troutman Sanders
Emily E. Schifter, Associate, Troutman Sanders
Susan K. Lessack, Partner, Pepper Hamilton
Tracey E. Diamond, Of Counsel, Pepper Hamilton
Lee E. Tankle, Associate, Pepper Hamilton

Hot on the heels of the temporary rule issued April 1, 2020 regarding the Families First Coronavirus Response Act, the Department of Labor’s (“DOL”) Employment and Training Administration recently issued three new guidance documents providing additional clarity regarding the unemployment insurance (“UI”) provisions of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.

As we previously covered, the CARES Act provided a significant expansion in unemployment insurance benefits and availability nationwide as part of a wide-ranging $2 trillion stimulus package. However, many employers (and employees) were left with questions regarding how these newly expanded benefits might play out in practice. With unemployment claims continuing to reach record highs, these letters provide some needed insights on the scope of benefits provided.

Additional Guidance to States – COVID-19 Warrants Flexibility, But Only So Much
First, in a letter issued April 2, 2020, the DOL provided states with instruction on available flexibility in staffing related to the UI provisions of CARES. But along the way, this guidance (and the two following it) emphasized the importance of ensuring the “fundamental eligibility requirements of the Federal-State UI program,” including, in what is likely a welcome reminder for many employers, reiterating that “quitting work without good cause to obtain additional benefits would be fraud.” This guidance further confirmed states’ “fundamental role in ensuring the integrity of the UI program” and emphasized that while states have been given increased flexibility in response to COVID-19, this flexibility is not intended to undercut key eligibility and accountability requirements.

The DOL reminded states that these flexibilities are “generally limited to dealing with the effects of COVID-19.” Many states have revised their UI laws in response to COVID-19 through emergency rulemaking or executive order to temporarily relax standard requirements relating to being able and available to work, or looking for work, but the April 2 guidance reminds states that their eligibility standards, even as modified or relaxed, continue to play a critical role in the UI system.

Details on Coordination of Benefits
Importantly, the April 2 guidance letter also clarifies the order in which an individual eligible for benefits should apply for them under the UI programs provided by several state and federal CARES Act.

An individual eligible for regular state UI benefits:

  • Must first apply for and be awarded regular state UI benefits. Individuals awarded regular benefits may receive an additional $600/week in Federal Pandemic Unemployment Compensation (“FPUC”) benefits pursuant to Section 2104 of the CARES Act.
  • May then be eligible, if the individual exhausts regular UI benefits, to receive extended compensation under Section 2107 of the CARES Act through Pandemic Emergency Unemployment Compensation (“PEUC”) for up to an additional 13 weeks.
  • May apply for state extended benefits consistent with state law if the individual exhausts the Section 2107 PEUC benefits, and the state has “triggered on” its extended benefits program.
  • May apply for additional UI compensation under Section 2102, Pandemic Unemployment Assistance (“PUA”), if any eligibility remains or the state has not “triggered on” its extended benefits program.

Individuals not eligible for regular state UI benefits should apply directly for Section 2102 PUA benefits if they believe they may be eligible.

Confirmation of Coverage for PEUC Section 2104 Benefits
In a letter issued April 4, 2020, the DOL provided additional details regarding the Section 2104 FPUC benefits – that extra $600 federally funded weekly benefit you have heard so much about.

Among other details, this letter clarifies that the Section 2104 FPUC benefits are available to individuals collecting regular UI, as well as individuals collecting the benefits from several other programs – including, in what had been an open question in the minds of many employers, individuals receiving benefits from short-time compensation programs in states that operate them (or initiate them). The guidance confirms that individuals receiving any benefit from their state – full or partial – may receive the additional $600 weekly benefit, noting that: “if the individual is eligible to receive at least one dollar ($1) of underlying benefits for the claimed week, the claimant will receive the full $600 FPUC.” However, if an individual is not entitled to an underlying benefit in any given week because, for example, they have performed part-time work for which they earn more than their weekly benefit amount, the individual will presumably not be eligible for either the regular UI or FPUC benefits for that week.

The guidance also addresses the end date for payment of the additional benefit. As noted, FPUC benefits are not payable for any week of unemployment ending after July 31, 2020. Accordingly, in states where the week of unemployment ends on a Saturday, the last week that FPUC benefits may be paid is the week ending July 25, 2020. For states where the week of unemployment ends on a Sunday, the last week that FPUC benefits are payable is the week ending July 26, 2020.

Additional Detail on Section 2102 PUA Benefits
Finally, in a letter issued April 5, 2020, the DOL offered further clarity regarding the Section 2102 PUA benefits – the new program that expands possible eligibility for UI benefits to many individuals who historically did not have access to them, like gig workers or individuals new to the workforce or with otherwise limited earnings history.

The letter confirms that only individuals impacted by one of the COVID-19 related reasons enumerated in Section 2102 qualify for PUA benefits. The letter also reiterates that PUA benefits are not payable to individuals who have the ability to telework with pay, or who are receiving paid sick leave or other paid leave benefits, but noted that an individual “receiving paid sick leave or other paid leave benefits for less than his or her customary work week” or who “has been offered the option of teleworking with pay and does telework with pay, but is working less than the individual customarily worked prior to the COVID-19 pandemic,” still may be eligible for at least reduced weekly PUA benefits.

The letter also explains how several COVID-19-related circumstances can qualify an individual for PUA benefits.  For example:

  • An individual who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, for purposes of Section 2102, may include:
    • An individual who has to quit his or her job as a direct result of COVID-19 because the individual has tested positive for the coronavirus or has been diagnosed with COVID-19 by a qualified medical professional, and continuing work activities, such as through telework, is not possible by virtue of such diagnosis or condition; or
    • An individual who has to quit his or her job due to coming in direct contact with someone who has tested positive for the coronavirus or has been diagnosed by a medical professional as having COVID-19, and, on the advice of a qualified medical health professional is required to resign from his or her position in order to quarantine.
  • An individual who is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19, for purposes of Section 2102, may include:
    • An individual who is “providing care” to a family member when the provision of such care requires such ongoing and constant attention that the individual’s ability to perform other work functions is severely limited.
    • However, an individual who is assisting a family member who is able to adequately care for him or herself is not “providing care” under this category.

Finally, in this letter the DOL reminded applicants (and states) that many of the COVID-19 related reasons that allow individuals to qualify for Section 2102 PUA assistance will be short in duration, and, if that is the case, the individual will not actually receive the maximum 39 weeks of benefits outlined in that section. For example, if an individual qualified on the basis that he or she “is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency,” and that quarantine lasts only a few weeks, he or she may lose eligibility to the Section 2102 benefits once the quarantine ends, at least on that basis.

We will closely monitor and update any changes as appropriate. In the meantime, please visit the Pepper Hamilton/Troutman Sanders COVID-19 Resource Center for COVID-19-related news and developments.

Emily Schifter, Associate, Troutman Sanders
Richard Gerakitis, Partner, Troutman Sanders
Tracey Diamond, Of Counsel, Pepper Hamilton
Rogers Stevens, Associate, Pepper Hamilton
Lee Tankle, Associate, Pepper Hamilton
Susan Lessack, Partner, Pepper Hamilton

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, provides an estimated $2 trillion stimulus package in response to the COVID-19 pandemic. The wide-ranging package covers many areas, but one of the most relevant for employers and to many individuals across the country involves the significant expansion of unemployment insurance benefits with three new federally funded programs — Pandemic Unemployment Compensation, Pandemic Emergency Unemployment Compensation and Pandemic Unemployment Assistance. With unemployment claims topping 3.2 million this week, the CARES Act should provide some much-needed relief to workers.

First, the Pandemic Unemployment Compensation program in section 2104 of the CARES Act substantially increases the standard amount of unemployment insurance available to otherwise qualified Americans. This program allows individuals who are eligible for and are awarded unemployment insurance benefits by their state to receive an additional $600 per week (funded by the federal government) for the next four months (through July 31, 2020) as Federal Pandemic Unemployment Compensation, which will be paid in addition to the weekly benefit amount authorized under state law. This supplemental benefit will be paid at the same time (but not necessarily in the same check) as regular state or federal unemployment compensation benefits.

Surprisingly to most employers, the $600 weekly unemployment compensation supplement is a flat amount that will be distributed to all individuals receiving full unemployment benefits (as well as, in states that provide them, partial unemployment benefits); it is not prorated based on an employee’s pay rate. Many companies worry that this will provide a disincentive for employees to return to work when and if work becomes available.

In addition to the increase in the amount of benefits paid, the Pandemic Emergency Unemployment Compensation program set forth in section 2107 of the CARES Act provides for an additional 13 weeks of state benefits after an individual has exhausted all regular state unemployment compensation benefits for total unemployment. Thus, individuals may be entitled to an additional 13 weeks of benefits beyond what their state ordinarily would offer.

Further, through the Pandemic Unemployment Assistance program in section 2102 of the CARES Act, federal unemployment assistance will be provided to workers who are otherwise ineligible for state unemployment benefits, including certain workers affected by COVID-19, along with other individuals who generally are not eligible for unemployment assistance, such as independent contractors, self-employed individuals and individuals with limited work histories.

Specifically, benefits under section 2102 of the Act are available for unemployed or eligible partially unemployed individuals who:

  • have been diagnosed with COVID-19 or are experiencing symptoms and seeking a diagnosis.
  • have a member of their household who has been diagnosed with COVID-19.
  • have a child who is unable to attend school because it is closed as a direct result of the COVID-19 public health emergency and care by the school is required for the individual to work.
  • are unable to reach work due to quarantine.
  • are unable to work because they have been advised by a health care worker to self-quarantine.
  • were scheduled to begin work but no longer have a job or are unable to reach work.
  • have become the head of household or breadwinner because the head of their household has died as a direct result of COVID–19.
  • are forced to quit their job as a direct result of COVID-19.
  • have their place of employment closed as a direct result of COVID-19.

Thus, the CARES Act expands on the Families First Coronavirus Response Act by providing salary relief to qualified individuals who become unemployed and to qualified individuals who are forced to remain at home due to a shutdown order imposed by many state and local governments closing all nonessential or nonlife-sustaining businesses. Individuals who meet one of the above definitions may submit a “self-certification” that they are unable to work due to the coronavirus outbreak. Despite this broad reach, however, the CARES Act does not cover individuals who are able to telework with pay or individuals who are receiving paid sick leave or other paid benefits, regardless of whether they meet any of the definitions for covered employees.

Further, in an effort to provide immediate compensation to eligible individuals, the CARES Act provides that the one-week waiting period normally applicable under most state unemployment compensation laws will be waived under the CARES Act. Moreover, the law builds on federal guidance issued earlier this month permitting significant flexibility for states to amend their unemployment insurance laws to provide unemployment benefits in multiple scenarios related to COVID-19 by directing states to provide “flexibility” with regard to the work-search requirement for individuals who are unable to search for work due to the COVID-19 pandemic. Many states had already responded by relaxing existing requirements; some have even implemented new rules (such as encouraging or requiring employers to file partial claims on behalf of their employees in the face of unprecedented demand).

The federal government also will temporarily provide full funding for states with workshare programs, thereby providing unemployment benefits to employees whose hours and pay have been reduced. Workshare programs allow employers to voluntarily enter into agreements with the state unemployment office to prevent layoffs by instead reducing employee hours.

The CARES Act also provides relief for employers in the form of loan forgiveness to incentivize employers to keep workers employed. Specifically, if employers maintain their payroll at levels compared to previous time periods (dependent on the size of the employer), the portion of the loan used to cover payroll costs, mortgage interest payments, rent and utilities will be forgiven.

Finally, section 2301 of the Act provides a refundable payroll tax credit for 50 percent of wages — up to $10,000 per employee — available to employers whose receipts decreased by more than 50 percent compared to 2019 or whose business operations were closed or partially closed due to the COVID-19 crisis. Again, the specifics of these benefits and the number of employees for which an employer may receive credit is subject to the size of the employer.

In sum, the multifaceted CARES Act should provide some much-needed relief to employees, as well as incentives to employers to keep employees working, or at least on the payroll, while employers continue to weather the COVID-19 storm.

Please visit the Pepper Hamilton LLP / Troutman Sanders LLP COVID-19 Resource Center for COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge. Please reach out to members of the COVID-19 Task Force of Troutman Sanders and Pepper Hamilton, or an attorney with whom you work, for guidance about COVID-19.

During this time of emergency, the Department of Homeland Security (DHS) has provided guidance for employers on how to complete the I-9 Employment Eligibility Verification form, which requires employers to inspect the original documents provided in person by employees. If there are individuals who wish to limit social interactions with others and do not want to present the documents in person, this is what the DHS recommends:

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.  

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Temporary Changes to E-Verify

The DHS has also made the following announcement regarding the completion of E-Verify during the COVID-19 outbreak:

  • Employers are still required to create cases for their new hires within three business days from the date of hire.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
  • E-Verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public.
  • E-Verify is also extending the timeframe to take action to resolve Department of Homeland Security (DHS) TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.

Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

For additional information and insights regarding the temporary adjustments to the I-9 and E-Verify procedures during the COVID-19 outbreak, please reach out to a Troutman Sanders Immigration attorney and visit the Pepper Hamilton LLP / Troutman Sanders LLP COVID-19 Resource Center for COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge.

Lee Tankle, Associate, Pepper Hamilton
Moses Tincher, Associate, Troutman Sanders
Tracey Diamond, Of Counsel, Pepper Hamilton
Susan Lessak, Partner, Pepper Hamilton

On March 18, President Trump signed into law the Families First Coronavirus Response Act (the Act). The Act addresses many issues related to the nation’s response to COVID-19, including free coronavirus testing, funding to ensure domestic nutrition assistance programs, and additional funding for state unemployment insurance programs. The provisions most relevant to employers are described below.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (EFMLEA) revises the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of partially paid coronavirus-related job-protected family leave to employees of businesses with fewer than 500 employees. Employees may take EFMLEA leave only if the employee is unable to work (or telework) due to a need for leave to care for a minor child if the child’s school or place of care is closed or the child’s childcare provider is unavailable due to COVID-19.

Unlike the current FMLA, to be eligible for EFMLEA, an employee needs only to have been employed for “at least thirty calendar days by the employer with respect to whom leave is requested.” The first 10 days of EFMLEA leave are unpaid (but likely will be covered by the Emergency Paid Sick Leave Act discussed below). After 10 days, the employer must provide paid leave to employees for the balance of their up to 12 total weeks of leave at an amount not less than two-thirds of the employee’s regular rate of pay based on the number of hours the employee normally would be expected to work. However, employers are not required to pay more than “$200 per day and $10,000 in the aggregate.” An employee is required to provide notice of EFMLEA leave as soon as practicable when the need for leave is foreseeable.

The Act permits the Department of Labor to adopt regulations that would (a) exempt employees who are health care providers or emergency responders from the EFMLEA and/or (b) exempt small businesses with fewer than 50 employees from the requirements of the EFMLEA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” The Act also exempts employers with less than 50 employees from civil liability for lawsuits brought by employees under the FMLA and allows employers to exclude their employees who are health care providers and emergency responders from the Act’s provisions. Though not stated directly in the Act, it appears that employers with fewer than 50 employees could still be subject to actions brought by the Secretary of Labor for failing to meet the EFMLEA requirements.

Like the FMLA, employers must restore employees taking EFMLEA leave to their position, or an equivalent position — however, there is an exemption that employers with fewer than 25 employees may be able to use if the following conditions are met:

  1. the employee takes EFMLEA leave;
  2. the position held when leave commenced does not exist because of economic conditions or other changes in operating conditions of the employer that affect employment and are caused by COVID-19;
  3. the employer makes reasonable efforts to restore the employee to a position that is equivalent to the position the employee held prior to EFMLEA leave; and
  4. if the reasonable efforts of the employer fail, the employer makes reasonable efforts during the one-year period following the date the employee commenced EFMLEA leave to notify the employee of equivalent positions that become available.

Although the EFMLEA does not address the issue directly, the exemption for employers with fewer than 25 employees implies that larger employers cannot rely on economic conditions or changes in operating conditions to lay off or terminate an employee who has taken EFMLEA leave.

The EFMLEA will take effect on April 1, 2020 and will remain in effect until December 31, 2020.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (EPSLA) applies to all current employees working for employers with fewer than 500 employees, regardless of the employee’s tenure. However, employers may deny emergency paid sick leave to their employees who are health care providers and emergency responders. And as with the EFMLEA, the Department of Labor may issue regulations exempting such individuals.

The EPSLA provides up to two weeks of paid leave (80 hours for full-time employees) for any of the following uses (to the extent the employee is unable to work or telework due to the need for leave):

  1. the employee is subject to a government-ordered quarantine or isolation order related to COVID-19
  2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
  3. the employee is experiencing COVID-19 symptoms and is seeking medical diagnosis
  4. the employee is caring for an individual who is subject to a government-ordered quarantine or a health care provider’s recommendation to self-quarantine
  5. the employee is caring for a child whose school or place of care has been closed due to COVID-19
  6. the “employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

Employees taking EPSLA leave are entitled to be paid at their regular rate of pay (but no less than the applicable federal, state or local minimum wage) for reasons 1 through 3 above. However, if employees are utilizing leave for reasons 4 through 6 above, they are entitled only to two-thirds of their regular rate of pay. Employers may cap paid sick time at $511 per day per employee ($5,110 in the aggregate) for leave taken due to reasons 1 through 3, and may cap it at $200 per day per employee ($2,000 in the aggregate) for leave taken due to reasons 4 through 6.

Importantly, under the EPSLA, an employer cannot require an employee to use other paid time off provided by the employer before the employee utilizes the additional paid sick leave provided by the EPSLA. Employers will be required to post a notice of the requirements under the EPSLA, which the Secretary of Labor shall make available within seven days after enactment.

Like the EFMLEA, the EPSLA will take effect on April 1, 2020 and will remain in effect until December 31, 2020.

Concluding Thoughts

Even with the enactment of the EFMLEA and the EPSLA, the FMLA still applies. If an employee works for an FMLA-covered employer (defined as an employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year), has worked for that employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12 months preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles, that employee may be eligible to take unpaid FMLA leave to attend to his or her own coronavirus-related illness or the coronavirus-related illness of a spouse, child or parent if complications from coronavirus arise that create a “serious health condition.” Furthermore, employers operating in jurisdictions that have their own paid sick leave and/or family leave acts will need to analyze the interplay between the Act and those laws to ensure that they comply fully with all applicable federal, state and local law.

The Act is unclear with regard to certain provisions, and the Department of Labor is expected to issue additional guidance and/or emergency regulations prior to the April 1 effective date. The requirements of the Act are no doubt daunting for employers, as many businesses throughout the nation have seen a dramatic decline in business and are struggling with whether they will have to make difficult employment decisions. However, the Act provides a refundable tax credit equal to 100 percent of qualified EFMLEA and EPSLA wages paid by an employer for each calendar quarter. The Secretary of the Treasury has commented publicly that support will be made available to employers with cash flow problems so that employers can meet their obligations under the Act.

This is a trying time for all Americans. Feel free to contact any member of the Pepper Hamilton or Troutman Sanders Labor and Employment Practice Groups to discuss your business’s response to COVID-19.

Ashley Hager, Partner, Troutman Sanders
Seth Ford, Partner, Troutman Sanders
Emily Reber, Associate, Troutman Sanders
Tracey Diamond, Of Counsel, Pepper Hamilton

We are continuing our series of guidance on the new issues facing employers during the COVID-19 outbreak. In our last post, Coronavirus and OSHA: What Employers Need to Know, we addressed occupational safety considerations during the coronavirus pandemic. This post addresses questions employers may have about sending employees home and implementing a remote work policy.

Sending Employees Home

Employees with COVID-19 symptoms. An employer may send an employee home (voluntarily or involuntarily) who has or is exhibiting symptoms of COVID-19. In response to the novel coronavirus outbreak, the EEOC has cited to its guidance regarding the 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act if the illness is serious enough to pose a direct threat to the employee or coworkers. The CDC’s guidance likewise advises that employees with symptoms of acute respiratory illness and a fever should stay home. Employers should apply this type of policy uniformly and in a non-discriminatory manner. All information about an employee’s illness should be maintained as a confidential medical record in compliance with the ADA.

Employees without symptoms. An employer may also send an asymptomatic employee home, or require the employee to work from home, if the employee has been in close contact with someone who has COVID-19. CDC guidance suggests sending asymptomatic employees home to self-quarantine for 14 days if they: (1) have close contact with a symptomatic individual or someone who has tested positive for the virus, (2) sat on an aircraft within 6 feet (two airline seats) of a symptomatic individual or someone has tested positive for the virus, or (3) lives in the same household as, is an intimate partner of, or is caring for a symptomatic individual, or someone who has tested positive for the virus, at home. In addition, nonessential businesses have been closed in certain areas of the country pursuant to government order.

An employer may also send an asymptomatic employee home, or require the employee to work from home, if the employee has recently returned from travel to certain areas with “widespread sustained” transmission (denoted by a Level 3 Travel Health Notice).

In order to prevent discrimination in the workplace, employers should use and uniformly apply the CDC guidance to determine the risk posed by employees in the workplace. Employers considering action beyond the guidance provided by the CDC may want to consult with a Troutman Sanders or Pepper Hamilton employment attorney before implementing such changes.

Remote Work Policies

As long as an employee’s duties allow telework, an employer may require an asymptomatic individual with no known exposure to work from home for a certain period of time as a preventative or precautionary measure. The Department of Labor recently reiterated that requiring or encouraging employees to work remotely can be a useful infection-control strategy and can also be appropriate as an ADA accommodation. Employers considering a telework or remote work policy should ensure that employees are not being selected for telework or to continue reporting to the workplace on any basis prohibited by EEOC laws.

Remote Work Policy. Some employers already have a remote work policy in place, which should be reviewed and updated as it relates to the coronavirus outbreak. If your company is implementing a telework system for the first time, you should take the time to develop a remote work policy. There are several points to consider to ensure a smooth transition, and you may wish to consult with an employment attorney for assistance in drafting or review of your remote work policy. Considerations should include:

  • Will workers be encouraged to work from home or barred from coming in to work?
  • Will there be exemptions for essential personnel that need to be at the workplace?
  • Will teleworkers need to be available at all times during working hours, or will remote meetings and appointments be scheduled ahead of time?
  • Will you prohibit or restrict the size of in-person meetings of employees?
  • Will you prohibit or restrict the size of in-person meetings between employees and third parties?
  • Are employees aware of security requirements in place to prevent data breaches or other loss?
  • Are there any confidential or privileged company documents that cannot be taken from the workplace?

A remote work policy will also want to include a mechanism for tracking time worked and overtime for non-exempt employees, as well as meal and rest breaks in states where they are mandated. In addition, employers will want to ensure that employees have the proper equipment in place to telework and set performance expectations. Finally, employers should make sure they are complying with state law requirements with regard to reimbursement of business expenses incurred by workers who are working remotely.

Stay tuned for additional insights in the next post in our coronavirus series. In the meantime, visit the Pepper Hamilton LLP / Troutman Sanders LLP COVID-19 Resource Center for COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge. Please reach out to members of the COVID-19 Task Force of Troutman Sanders and Pepper Hamilton, or an attorney with whom you work, for guidance about COVID-19 and sending employees home and a remote work policy specific to your workplace.

Troutman Sanders has been closely monitoring the Centers for Disease Control and Prevention and other world authorities’ updates and recommendations regarding the novel coronavirus (COVID-19).

All Troutman Sanders’ lawyers and staff have been strongly encouraged to work remotely beginning Tuesday, March 17. Essential on-site services will be maintained in each office. We have no known reports of infection among our attorneys or staff and are voluntarily taking this step to minimize the risk of infection to any of our clients or employees.

Our attorneys and staff are fully prepared to work remotely, with no interruption of service to our clients. You may continue to reach our attorneys and staff at their regular office phone number and email address.

Pepper Hamilton / Troutman Sanders COVID-19 Resource Center

Troutman Sanders and Pepper Hamilton have developed a joint dedicated COVID-19 Resource Center to guide clients through this unprecedented global health challenge. We will regularly update this page with COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge. We have assembled a COVID-19 Task Force of Troutman Sanders and Pepper Hamilton attorneys who are available to help companies navigate this evolving public health crisis. They represent diverse practice areas and industries across multiple geographies. If you have any questions, don’t hesitate to contact an attorney on our Response Team or an attorney with whom you work.

We hope that you and your family remain healthy and safe throughout this global health challenge.

Since we first covered it a few weeks ago, the outbreak of coronavirus (COVID-19) has had an unprecedented impact and is no longer simply making headlines. It has now begun interrupting the flow of business – impacting financial markets, disrupting travel plans, and forcing the cancellation of meetings and events. (To the great disappointment of many sports fans, even landmark events such as the NCAA March Madness college basketball tournament and the Masters will not go on as planned this year). Seemingly nothing has been left untouched.

All this leaves many employers wondering – what does this mean for my workforce, and how can I plan? Ashley Hager covered many topics during our complimentary webinar, Managing Your Workforce During a Pandemic, on March 9, and in this blog series, we will address many of the issues employers may face under the various federal and state laws governing employment as the outbreak continues.

Occupational Safety Considerations for COVID-19

One of the first things that likely comes to mind for employers thinking about health and safety in the workplace is the federal Occupational Safety and Health Act (“OSH Act”), and for good reason: maintaining compliance with the primary federal law governing worker health and safety in the United States in uncharted territory can seem daunting. Below, we review the guidance that the Occupational Safety and Health Administration (“OSHA”) has offered so far related to COVID-19; we outline some of OSHA’s existing standards that may apply; and finally, we address a few other common OSHA-related questions.

OSHA Guidance on Coronavirus

First, although several industry groups and politicians have publicly urged OSHA to issue an emergency temporary infectious disease standard, as of the date of this blog post’s publication, there is not a specific OSHA standard covering the coronavirus. However, OSHA recently issued a 35-page Guidance on Preparing Workplaces for COVID-19. Among other things, the Guidance offers suggested steps for all employers to protect workers from exposure to and infection with COVID-19, such as developing an infectious disease preparedness and response plan and implementing workplace controls like safe work practices and personal protective equipment (“PPE”), among others. The Guidance goes on to divide job tasks into four risk exposure levels: very high, high, medium, and lower risk, with “the four exposure risk levels in the shape of a pyramid to represent probable distribution of risk” and offers additional suggestions based on each level of risk. OSHA opines that most American workers likely fall in the lower risk or medium categories, although the determination will be fact-specific. Note that while it is informative, the Guidance is not a standard or regulation, and creates no new legal obligations.

Even though there is not (yet) any binding standard from OSHA related to COVID-19, employers are not immune from OSHA compliance in the face of the outbreak. OSHA has indicated that its guidance on pandemic influenza may provide insight absent anything specific to coronavirus. More importantly, as OSHA itself has indicated, employers should be aware that multiple existing OSHA standards may be implicated by the risk and presence of coronavirus in the workplace. These may include, for example:

  • The General Duty Clause, Section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1). This requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.
  • OSHA’s PPE standards (in general industry, 29 C.F.R. § 1910 Subpart I). These standards may require using gloves, eye and face protection, and respiratory protection, among other things, in appropriate circumstances.
  • OSHA’s Hazard Communication standard (in general industry, 29 C.F.R. 1910.1200). This and other applicable OSHA chemical standards require employers to protect their workers from exposure to hazardous chemicals – which may be present in many common chemicals used for cleaning and disinfection.

OSHA has also identified several additional general industry standards as potentially relevant, including standards like those governing access to employee exposure and medical records in 29 C.F.R. § 1910.1020 and sanitation in § 1910.141. Further, employers in one of the 28 states operating an OSHA-approved state plan may be subject to additional requirements (for instance, the Cal/OSHA Aerosol Transmissible Diseases standard).

Are COVID-19 Cases OSHA-Recordable?

Employers are required under OSHA’s recordkeeping regulations to record certain illnesses on the employer’s OSHA Form 300. While the recordkeeping regulations generally exempt the “common cold and flu,” COVID-19 is not considered a common cold or flu. OSHA’s current guidance, as of this blog post‘s publication, indicates that “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.” But, OSHA has indicated that employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19 (OSHA recommends that employers consult the CDC for additional guidance as to testing and confirmed results, and for persons under investigation for possible infection);
  • The case is work-related as defined by OSHA regulations (generally, an illness is work-related for OSHA purposes if it is more likely than not that a factor or exposure in the workplace caused or contributed to the illness); and
  • The case involves one or more of OSHA’s general recording criteria (such as days away from work, job transfer, and medical treatment.)

Thus, an employee who contracts a confirmed case COVID-19 from, for example, an international vacation has likely not experienced a “work-related” injury. However, if that same employee then comes into work and infects a co-worker, the co-worker may be considered to have experienced a work-related illness, which would need to be included on the employer’s Form 300 log presuming one of the recording criteria is met.

OSHA’s Impact on Remote Workers

Many employers are allowing or encouraging employees to telecommute in response to the COVID-19 outbreak and may question whether and to what extent OSHA regulations (even beyond those potentially related to COVID-19) apply to their remote workers. OSHA’s current position is that it will not conduct at-home workplace inspections and that it will generally not hold employers liable for at-home safety issues. However, employers’ other health and safety obligations remain intact, even for remote employees. Employers also retain responsibility for hazards caused by materials, equipment, or work processes the employer provides or requires to be used in an employee’s home.

In the case of an injury sustained at home, OSHA will consider an injury “work-related” if it both occurs while the employee is performing work for pay in their home and is directly related to the performance of work, rather than to the general home environment or setting. Employers are thus required to keep records of work-related injuries (and update their OSHA Form 300 logs) that otherwise meet the recordability criteria suffered by remote workers. So, employers should encourage all remote employees to report workplace injuries and unsafe working conditions and notify them of the procedures to do so.


Finally, given the constant influx of news and information (and, sometimes, misinformation) that employees may be hearing, reading, or discussing, employers should keep in mind the OSH Act’s anti-retaliation provision, which prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA’s current position is that most U.S. workers remain at a low risk for exposure. So, maintaining a calm presence in the face of employee concerns can go a long way in providing reassurance to worried workers (and avoiding a potential retaliation claim).

Stay tuned for additional insights in the next post in our coronavirus series. In the meantime, please reach out to a Troutman Sanders labor and employment attorney for guidance about COVID-19 and OSHA compliance specific to your workplace.

For two months, an outbreak of a novel coronavirus (COVID-19) has been spreading rapidly across the world. Is your company prepared to handle the issues that will arise if the virus spreads to your community or even becomes a pandemic? In this presentation, Ashley Hager will discuss tips for managing your workforce in light of the spreading coronavirus, including:

  • Options for dealing with employees who are unable or unwilling to work or who are not needed to work;
  • Changes you may need to make to your sick leave, attendance, telecommuting, and bereavement policies, and new policies you may want to adopt; and
  • Likely impacts on third-party health care benefit providers.

Webinar Details

  • Monday, March 9, 2020, 2 p.m. ET – 3 p.m. ET.
  • To register, please click here.
  • For more information, please contact Evan Kendall.

On January 30, 2020, three major events occurred: (1) the World Health Organization declared a new virus known as Coronavirus Disease 2019 (COVID-19) a “Public Health Emergency of International Concern”; (2) the first confirmed instance of person-to-person spread with this virus was reported in the United States; and (3) the U.S. State Department issued its highest-level warning against travel to China, where the virus was first detected. Since then, the coronavirus outbreak has continued to spread rapidly across the world, with the recent spike in coronavirus cases in South Korea, Iran, and Italy. The outbreak has also caused economic turmoil, as just within the past two days major global stock markets plunged more than they had in years. And while many questions still remain—such as how long this epidemic will last or whether there is even a cure—one thing is certain: the need for employers to take preventive measures in the workplace amidst the current coronavirus outbreak.

Before discussing what those measures are, here are some quick facts about the virus:

  • COVID-19 is a respiratory illness that was first detected in Wuhan, China in 2019.
  • Its symptoms include fever, cough, and shortness of breath.
  • As of this writing, the coronavirus outbreak has infected over 80,000 people worldwide and has killed over 2,700 people, mostly in China.
  • So far, 60 people have been diagnosed with the virus in the United States, mostly former passengers of the Diamond Princess cruise ship in Japan who are now in quarantine.

As these facts indicate, the people with the greatest risk of infection are those living in China. But even domestic workers, as evidenced by recent news, pose a risk of contracting the virus if they or their friends or relatives have recently been to China or other affected regions.

With that in mind, here is our top 5 list of how employers can stay immune amidst the coronavirus outbreak:

1. Limit Travel

As an initial matter, employers should strongly encourage their workers to avoid all nonessential travel to areas where the coronavirus outbreaks are high. Employers with business involving travel to those areas should consider reasonable alternatives for their workers, such as videoconferencing.

2. Engage in Open Communication

Employers should also inform workers that management is aware of and closely monitoring the coronavirus outbreak, particularly with respect to company travel to and from an affected region. If some workers have recently had overseas exposure, employers may generally inquire as to where the workers traveled or whether there was any potential exposure to a contagious illness during their travel. Asking and welcoming questions about the virus can be key to maintaining a calm work environment. Thus, without overreacting, employers should have management anticipate and prepare how to answer common questions that may be raised.

3. Reinforce Sick Leave and/or Remote Working Policies

According to the Centers for Disease Control and Prevention (CDC), a person may show symptoms of the coronavirus within 14 days of overseas exposure. In that situation, if workers show up feeling sick with a fever, a cough, or difficulty breathing, employers should encourage them to use their leave of absence to see a medical professional and return to work only once the symptoms disappear and/or they obtain a fitness-for-duty/return-to-work notice from their physician. If a worker refuses to do so or if the medical professional determines that a worker has contracted the coronavirus, employers may consider implementing remote working policies or requiring the worker to stay home from work to mitigate a “direct threat” to the workplace (for more information on what is a direct threat, please visit the Equal Employment Opportunity Commission’s website). In short, employers should encourage workers who have returned from overseas within the past 14 days that display symptoms of the coronavirus to stay at home for a limited time period.

4. Educate Workers

It is also pertinent for employers, especially those that have workers remaining overseas, to educate workers (and themselves) on how to stay protected from exposure to the coronavirus. Employers may do so by referring to appropriate government agencies, health organizations, and other resources to learn more about the virus. For example, the CDC lists the following recommendations to help prevent the spread of the virus:

  • Wash hands often with soap and water for at least 20 seconds, and if soap and water are not available, use an alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, and mouth with unwashed hands;
  • Avoid close contact with people who are sick;
  • Stay home when sick;
  • Cover coughs or sneezes with tissues, then throw the tissues in the trash; and
  • Clean and disinfect frequently touched objects and surfaces.

Again, while there is currently no vaccine to prevent COVID-19, circulating these good hygiene practices to workers is the next best step for employers to stay proactive during the coronavirus outbreak.

5. Comply with Legal Obligations

Finally, there are certain legal obligations that employers have when responding to the outbreak. For example, if an employer chooses to exclude certain workers from the workplace until the incubation and transmission period has passed, it must not discriminate on the basis of race, national origin, or disability; rather, it should send home all workers that have recently been exposed to the affected regions and pose a direct threat. Employers should also review their health and safety policies and emergency response plans to ascertain that they include infectious disease protocols and comply with the Occupational Safety and Health Act and various health and safety regulations. And of course, employers should be mindful to keep confidential all medical-related information received from workers, in accordance with the Americans with Disabilities Act. For more information and guidance on specific workplace issues and policies related to the coronavirus, please contact your Troutman Sanders employment attorney. We will continue to monitor the coronavirus outbreak and provide updates as necessary.

At the end of last year, we reported that a federal district court had imposed a last-minute temporary restraining order to block California from enforcing its new law (AB 51), which would have imposed criminal penalties on California employers that use mandatory arbitration agreements. That court has now issued a preliminary injunction that continues to block AB 51 until the court decides the merits of the underlying lawsuit, which seeks to overturn AB 51 as preempted by federal law (United States v. BecerraCase No. 2:19-cv-2456 KJM DB). For a recap of AB 51 and the procedural history leading up to this preliminary injunction, please refer to Troutman’s previous client advisory, “Court Temporarily Blocks California’s New Law (AB 51) That Prohibits Employers From Using Mandatory Arbitration Agreements.”

With the preliminary injunction in place, California employers may continue to use mandatory arbitration agreements as a condition of employment without fear of criminal prosecution. The preliminary injunction is expected to remain in effect until resolution of the underlying case, which could take at least a year. California employers should use this time to consider and review their employment dispute resolution goals, including any existing or desired arbitration agreements and practices, and consult with their legal counsel about best practices in drafting, updating, and distributing these agreements.