With many states and localities easing their shelter in place orders, flooring retailers and contractors will begin reopening their facilities and bringing back employees. We have gathered members questions revolving around this ever-changing environment here.
What is and is not permitted depends on the particular shelter in place order, which varies from state to state and even with in a state. Most state shelter in place orders allow at least some construction, at least if it is for needed repairs. You may want to call your state’s governor’s office and they should be able to give you a definitive answer.
Unfortunately, I am not licensed in Washington State and cannot give legal advice regarding the state’s laws or orders, including the Governor’s the ’Stay Home, Stay Safe” Proclamations. I obtain a definitive answer, you can contact the Governor’s office or consult with legal counsel licensed in Washington State.
I have, however, read the Proclamations and understand that the Governor has begun the easing the restrictions on the opening of businesses. As I read the latest guidance from the Governor, he is phasing in the opening of businesses and the lifting of other restrictions.
The state is currently in Phase 1, which authorizes existing construction projects to be completed. The Governor’s Proclamation defines existing construction projects to mean:
- Construction activity that is a) needed to fulfill an obligation under a contract effective prior to March 23, 2020, or b) authorized by a government-issued permit obtained prior to March 23, 2020.
- All work must comply with the Phase 1 safety requirements.
- New construction projects are not authorized. Phase 1 should last around 3 weeks, and absent any issues, Phase 2 will start and allow new construction.
- Under the plan, smaller counties can apply for a variance from the order which would allow them to open even more businesses than allowed statewide.
Answer:
You would need to check with your state’s laws and regulations regarding travel but let me give you some guidance based on my understanding of the federal requirements.
Are we allowed to prohibit personal travel?
Answer: No, you cannot prohibit personal travel.
Are we allowed to require them to self-quarantine (not report to work) for 14 days after they return?
Answer: It depends, but it may not be the best solution. For an employee who has traveled to high risk areas or otherwise may have been exposed to COVID-19 by circumstance, the answer is you can require self-quarantine. If, however, an employee has traveled to an area not identified as high risk, the answer is maybe. Colorado has been designated as a low risk area. To require an employee to self-quarantine for going to Colorado, raises the issue of whether you will require all employees who take a vacation to self-quarantine if they travel even within the state. Absent some reasonable basis for requiring self-quarantine for going to Colorado (such as flying on a commercial airlines), but not Dallas for example, may create problems. In this situation, the employee should complete a risk assessment to determine level of risk to the workplace—taking their temperature, asking whether they came in contact with anyone with COVID-19 symptoms or the employee is experiencing any symptoms, and similar information. WFCA has a recommendation on reopening that may can be applied here to minimize the risks to your employees and customers (Learn more here).
In addition, you cannot consider the individual age or underlying health condition. The Equal Employment Opportunity Commission (“EEOC”) has caution that employers may not discriminate against employees based on age or pre-existing conditions in deciding who can return to work, even though employers may have the safety of their workers in mind when making such decisions. For more information on this issue, you can go to the WFCA website which has information on these issues.
Do we have to pay them for the time off she takes to self-quarantine? We have PPP, but it ends just as she returns from her vacation so self-quarantine would be after PPP. She does not have enough vacation time on the books to cover vacation and 14 days of self-quarantine.
Answer: There is no clear guidance here, but I see nothing that would require pay during any self-quarantine. I do recommend that if you are going to require self-quarantine, you apply it to all employees and advise them before they go on vacation.
The simple answer is you can terminate their employment and notify the Unemployment Insurance Administration. I am not licensed in Michigan to practice law and cannot give you legal advice. It is my understanding, however, that if a worker refuses an offer of suitable work, the employer should notify the Talent Investment Agency - Unemployment Insurance (TIA-UI) of the refusal, either in writing at P.O. Box 169 Grand Rapids, MI 49501-0169; by fax, at (517) 636-0427, or online using the employer’s MIWAM Account. You will need to provide the following information:
- A copy of the offer including the rate of pay, who offered it, and how it was communicated to the claimant (verbally, written, posted, personally delivered);
- If applicable, how the offered work compares to work previously performed for the employer by the claimant;
- The reason given by the claimant for refusing the offered work.
TIA will than ask the former employee to show good cause for refusing to come back to work.
To ensure that this does not impact your PPP loan, you need to make a written offer to the employee (this can be an email), and document the refusal by the employee to come back (this can be an email from or to the employee confirming their refusal).
You can get additional information on the WFCA website on this issue by going to Learn More Here.
For instance, are we allowed to ask them the same questions we could ask an employee (do you have a fever, have you been exposed to someone, do you have any symptoms, etc)? Or can we require them to wear a mask/gloves - or even take their temperature (not saying I would ask them to do this but wondering if it would apply)?
Answer:
I am unaware of any specific requirement regarding notices or testing of customers. Nonetheless, I believe it is a good idea to do both.
As to signage, I suggest you explain that you are taking steps to minimize any risk of exposure to your customer and employees, including taking the temperature of all employees and customers, assuming you can do that with a digital thermometer. You could add that all customers and employees are requested to provide whether they have had any symptoms or been in contact with anyone with the coronavirus. WFCA has posted on its website a form one of its members is having customers fill out before entering their store.
The bottom line is you know your customer base and employees best, and you need to adopt steps that will protect everyone while meeting customer expectations.
I would love to have her back but don't want to endanger her. We are doing the precautions listed on the WFCA website, but you are still more exposed once you leave your home and go to work. I'm just not sure if legally I should do something different. I will still have to decide if morally I think she will be ok. Thank you for anything you might add to my thoughts.
Answer:
I understand your dilemma. While you are trying to keep your older employee safe, you also cannot discriminate based on age. My suggestion is that you document your concerns to her. If she has any paid leave available offer to pay her for all unused leave followed by unpaid leave until it is safer to come back to work. If she has no paid leave left, offer her unpaid leave. This way she is only furloughed. If she still wants to come back, you will have documented your concerns and her insistence to come back to work. Not perfect, but at least you will have a record if in fact she becomes sick.
I would like input on what would be the best solution for rehiring several of our salespeople. Our store never closed, and I did not lay off any employees. Four of our 11 straight commissioned salespeople left because of fear of the virus and are collecting unemployment.
Answer:
Unemployment benefits are run by each state and vary state-to-state. I am not licensed to practice law in Texas and cannot give legal advice on Texas laws or regulations.
With that said, it is my understanding that Texas allows someone to work part-time and still collect unemployment benefits up to a cap. I understand that the Texas Workforce Commission determines the weekly unemployment benefit amount by calculating the employee's earnings for the highest paid quarter of the last four quarters and dividing that amount by 25, up to a maximum of $521 per week. Benefits are available for up to 26 weeks. The CARES Act added an additional 13 weeks of coverage and an additional $600 a week until July 31, 2020. I believe Texas has cut off the $600 on July 25, 2020.
As I read the Texas rules, if an individual works part-time their unemployment benefits may decrease. The individual can earn up to 25% of his or her weekly benefit amount before any reduction in the benefits. For example, if an individual receives $500 in benefits, there will be no reduction until they earn more than $125. After that, the weekly benefit amount would be reduced dollar-for-dollar. Accordingly, an individual receiving $500 a week of unemployment and earning $250 working part-time, would receive $350 a week in unemployment. In this example if the individual earned $650 a week they would not receive any unemployment.
It is my understanding that employees must first quality for unemployment under these rules to receive the additional $600 under the CARES Act. Accordingly, if an employee earns more than the 25% over the unemployment benefits, they will lose both the normal unemployment plus the $600. Under the example above, an employee could earn up to $649 a week and receive $1 in unemployment benefits plus the $600. You will need to check with the Texas Workforce Commission or a local attorney to very this information.
As a result, it appears to benefit your employees to work part-time provided they do not earn more than the 25% over the unemployment benefits. Each employee’s benefit amount will bebased on their earnings and likely will vary, so the actual amount each can earn without losing unemployment benefits will vary. I also understand that the unemployment paid to your employees will impact your unemployment rates. The rates will be impacted only by the amount paid out in normal unemployment, and not the $600. The additional $600 is paid by the federal government, which means they are not chargeable to Texas employers’ unemployment insurance tax accounts,
Question:
I just got this terrible news update from our California Insurance broker related to an executive order Governor Newsom just signed related to Worker’s Comp. It puts the burden of proof on the employer if the employee contracts COVID-19. Obviously if they are sick for a couple days and come back to work in a couple weeks it is not horrible, but if one get very ill and passes away that could be devastating on so many levels for the employer. Can you provide guidance on steps to protect our business and maybe lobby at a higher level to stop this?
Answer:
I believe it will create a lot of litigation. My recommendation is that you implement precautions to limit the exposure of your employees to the coronavirus. The WFCA website has a list of recommended precaution based on the guides from the CDC, OSHA and others. You can access the list by clicking Learn more. By taking these precautions, you will have a good argument that the employee was unlikely to have contracted COVID-19 at you facilities. You may also want to work with you worker’s comp insurer to implement practices it recommends.
We will continue to monitor the developments. We would appreciate you sharing anything you on this issue.
Since 3/23, we continued to operate with about 80% of our entire staff with greatly reduced hours as we continued to have limited essential business to conduct. Our front door was locked, however in anticipation of a phased relaxing of the Stay-at-Home Order, we unlocked the front door last week. If employees were working and/or receiving Unemployment Insurance, am I obligated to the 80 hours of Sick Pay for everyone?
Answer:
An employee that is asked to come back to work on or after April 1, is covered by the required two weeks of paid sick leave if they cannot come back because:
- Has been advised by health care provider to self-quarantine due to coronavirus at 100% of their pay up to $511 a day
- Are experiencing symptoms of coronavirus; at 100% of their pay up to $511/ a day;
- Are caring for relative that is has cannot work because of the coronavirus at 2/3rd of their pay up to $200a day; or
- Are caring for their child because the school is closed or child care provider is unavailable due to coronavirus at 2/3rd of their pay up to $200a day;
If they are caring for a child who is not is school and there is no childcare available, that employee is entitled to an additional 10 weeks of paid family leave at 2/3rd of their pay up to $200a day.
