Returning to Work

By Tim O’Connor
Managing Editor

As the infection curve continues to flatten and the initial stages of the coronavirus response nears the end, companies are asking when will it be time to return to business as usual? When will storefronts and restaurants reopen and when will the supply chain resume its steady, reliable flow?

“Getting back to work means getting back to life as we know it,” said Suzanne Clark, president of the U.S. Chamber of Commerce, during a webinar in April that discussed the steps that need to occur before the country can fully return to work. The message of that discussion, which included Dr. William Hanage, associate professor of epidemiology at Harvard’s T.H. Chan School of Public Health, was that a resumption of normalcy was dependent on health risks, increased testing, and public confidence.

“At the chamber, we believe we will return to work when we return to health,” Clark said. “And that ’when’ will be determined in really close consultation with public health officials and medical experts.”

The likelihood, Clark noted, was that there would be a period of semi-normal before life returns to the way it was before COVID-19 began to rapidly spread. Businesses must be prepared to quickly resume operations during that time so they are well-positioned for the recovery that will follow. 
“Whether this temporary period of semi-normal begins in weeks or begins in months, the American business community – employers and employees – have to start preparing now,” she said. “When we get that green light, we want to be ready to put our foot on the gas, not start to map out the route.

To put some extra pressure on that peddle, the U.S. Chamber is holding a series of Path Forward webinars designed to help companies find answers to the many questions they have as they develop a reopening strategy. The webinars are available on the U.S. Chamber of Commerce Foundation website: uschamberfoundation.org .

Clark said the ideas formed through the series will inform the work the U.S. Chamber is doing to help businesses anticipate the challenges they will face in the months ahead and make recommendations to government officials and agencies. “Business readiness is going to be essential for this next phase and we know that it’s going to be intertwined with restoring public health, rebuilding the economy, and restoring our lives,” she added.

In addition to the webinar series, the U.S. Chamber has begun to catalog some of the major implications of returning to work in the COVID-19 era, such as workplace safety, employee rights, and continued revenue disruptions. The document is intended to encourage discussion and help business leaders think through the coming challenges.

The following excerpts are republished with permission from the U.S. Chamber.

Issues to Resolve for a Successful Return to Work:

Essential Services and Resources

Bringing employees back to work and reopening commerce will require that certain essential services and resources are in place. These include:

General Health Screening

The CDC has recommended that critical infrastructure employers screen certain exposed employees for temperature, ideally before entering the facility. If this recommendation is expanded to cover all employees and potentially customers, employers will have to acquire temperature checking equipment and develop a process to screen individuals. Early and federally consistent guidance as to what will be expected is critical because it will take time to acquire equipment and establish protocols.

COVID-19 Testing

To the extent that return to work is based on the testing of employees either for the COVID-19 virus or antibodies to COVID-19, there will have to be sufficient testing capacity, as well as clear resolution on who is responsible for administering the tests, paying for the tests, and checking test results. Most employers are not well-positioned to administer these medical tests, so there must be widely accessible third-party providers. There also will need to be standardization as to when employees need to be tested, the frequency of tests (especially important if testing for infection, rather than antibodies), and the documentation employees will provide to employers. Frequent testing could be especially costly, and it should be determined who will bear those costs.

Personal Protective Equipment (PPE)

If public health professionals recommend widespread use of PPE, such as masks, it will require clarity as to what is needed and who is responsible for providing such equipment, especially if shortages persist. For example, with respect to certain employees in critical infrastructure, the CDC has said: “Employers can issue face masks or can approve employees’ supplied cloth face coverings in the event of shortages.” However, the purpose of these masks should be made clear as many are not rated for protecting the wearer and employers asking employees to wear them should not be held liable if an employee contracts COVID-19 while wearing such a mask.

Resolution of Regulatory and Legal Liability Issues

A reopening plan that is medically based and relies on social distancing and other best practices for public health may raise significant regulatory and legal liability risks. These are in addition to numerous lawsuits already filed as a result of COVID-19 and litigation risk that will become exacerbated during a reopening. Issues include:

Health Privacy

Federal and some state laws are designed to maximize the health privacy of individuals. However, this objective could conflict with potential reopening requirements for employers to verify an employee’s COVID-19 status and/or their vulnerability due to underlying health conditions. Employer efforts to protect other employees and conduct contact tracing in the workplace after an individual has tested positive could be slowed by obligations to protect the infected individual’s health privacy. In addition, confidentiality requirements could prevent businesses from narrowly focusing their contact tracing so as to balance workforce safety while minimizing business interruption. During the COVID-19 national emergency and recovery period, employers will need a broad safe-harbor to make necessary inquiries regarding health status and to make certain limited disclosures to prevent the spread of the disease.

Discrimination Claims

Employers who conduct a medically-based or risk-based reopening (using factors such as age or underlying health conditions) may face liability under existing anti-discrimination rules, including the Age Discrimination in Employment Act and the anti-discrimination provisions of the Americans with Disabilities Act. In addition, employers could face claims for adverse employment actions by employees who are delayed in returning to work or who feel they are not provided other reasonable employment accommodations. At the same time, employers can likewise face liability if they return at-risk employees to work too soon. There is a need for clear guidance about what practices are acceptable in conducting a medically-based or risk-based reopening and provide a safe harbor for actions taken by employers consistent with those guidelines.

Safe Workplace Requirements

Generally, when maintaining a safe workplace requires the use of personal protective equipment (PPE) such as masks, respirators, and physical barriers, OSHA requires employers to be responsible for ensuring the availability of such equipment and training employees on the use of the equipment. This is simply not possible if PPE becomes recommended in all workplaces. The federal government should make clear that PPE recommended specifically to combat the spread of COVID-19 is not subject to the normal OSHA requirements around workplace PPE.

Employers also may face lawsuits around the limited supply of or training for PPE. Worker’s compensation issues dealing with shortages of PPE or its incorrect use are also likely to emerge. The federal government should clarify the scope of liability for the provision (or inability to provide due to scarcity) of PPE.

Support for Independent Contractors

More than 23 million Americans receive income as independent contractors in fields as varied as construction, news reporting, professional services, and online-platform-enabled work. Businesses want to be able to provide the same type of workplace protections to independent contractors as they do for employees. However, doing so could be used to argue that the individual has ceased to be an independent contractor and is instead an “employee.” Congress should settle this tension by creating a safe harbor that would allow businesses to implement health practices and provide benefits, including PPE, without establishing a formal employment relationship for the duration of the COVID-19 return to work transition.

Employment Practices

Employers already are facing litigation regarding employment practices related to the pandemic. This includes class actions in the transportation industry regarding employees’ scope of work and travel destinations. Employers also could face liability around wage-and-hour issues (for example: Are employees compensated while getting tested or passing through screening?), leave policy, travel restrictions, telework protocols, and worker’s compensation. In addition, employers could risk legal actions if they do not accommodate employees who either insist on returning to work even though they have not completed health screenings or are high risk, or who refuse to return to work and provide adequate support for such refusal. There should be a safe harbor for temporary employer-implemented workplace policy changes designed to combat the spread of the coronavirus.

Another source of liability are charges against employers forced to lay off workers in response to social distancing policies and government-mandated closures. The federal WARN Act and many similar state laws require employers comply with procedural requirements, including notice to employees in the event of layoffs. California Governor Gavin Newsom issued an executive order on March 17, 2020 that suspended some requirements under California’s WARN Act and ordered the state’s labor agency to issue guidance on the suspension. Policymakers should implement similar statutory and/or regulatory changes designed to limit the application of the WARN Act for COVID-19 related layoffs.

Exposure Liability

This is perhaps the largest area of concern for the overall business community. It encompasses multiple types of claims that could be brought against business that have been designated as “essential” as well as large swaths of the remaining business community once the economy is reopened. The core component of claims in this category is that a customer/employee/patient/member of the public/etc. was exposed to COVID-19 in a business facility or as the result of a business’ particular action, or failure to act, and then that claimant became sick. The legal theories underlying these claims may range from simple negligence to strict liability to public nuisance, which the plaintiffs’ bar could try to pursue through contingency fee arrangements with cash-strapped states and municipalities. Depending on the legal theory underlying the claim, proving causation may be a challenge for plaintiffs. If enough claims are brought, the scope and magnitude of the litigation still may exert enough pressure to threaten businesses or industries with bankruptcy. The threat of exposure-related lawsuits also will deter some businesses from reopening even after it is determined that they could safely operate by following the guidance of appropriate health authorities.

Reforms to address these types of claims are largely dependent on which legal theory underlies a particular claim. For example, in the negligence space, providing a safe harbor for companies following CDC or state/local health department guidance could be helpful so long as the companies’ actions do not amount to gross negligence, recklessness, or willful misconduct. Procedural reforms such as channeling certain claims into federal court rather than allowing them to remain in various state courts could be helpful. Prohibiting or tightly circumscribing public nuisance claims also could be useful. Finally, policymakers should look to the reforms contained in prior economy-wide federal legal reform laws, such as the Y2K Act for guidance.

Customer Communications

Businesses have an enhanced need during the COVID-19 emergency to communicate to customers via telephone and text messages regarding operating status, restricted access, and other issues. However, the threat of litigation under the Telephone Consumer Protection Act (TCPA) can cause a business to limit the use of the important informational phone calls and texts. Approval of a pending petition at the FCC to expand the type of communications subject to an emergency exemption due to the COVID-19 situation would be helpful.

Support for Businesses and Individuals

The federal government took unprecedented steps to support employers and individuals during the current shutdown. These programs will need to be modified and to some extent extended and targeted to assist those businesses and individuals who will remain under distress during a phased or gradual reopening.

Businesses Dependent on High-Density Gatherings or Travel

Entertainment venues, restaurants, bars, companies that host meetings and events, and many other businesses are only profitable when they achieve the type of occupancy and density that is not possible during social distancing. In addition, many businesses rely on business, trade show, and personal travel that may be greatly reduced based on social distancing guidance. A gradual or phased reopening that restricts the size of gatherings or limits travel may technically permit these businesses to reopen but this will mean operating at a significant loss. During the period where occupancy and gatherings are numerically restricted, these businesses should be provided with bridge assistance to enable them to remain viable.

Individuals Delayed in Returning to Work

Until there is a widely available vaccine, or at least a widely available effective treatment for those who fall ill, not everyone will be able to resume normal work activities. High risk populations will need to engage in social distancing or even remain at home entirely. Individuals, including independent contractors, who must stay home because of their risk profile will need ongoing financial support if they cannot work remotely. This may require an extension of regular unemployment insurance or the creation of a new “high risk” unemployment insurance system.


Agencies and Organizations to Know

Where to find answers on COVID-19 relief and recovery efforts.

When you have a question or need information during an economic crisis, knowing who to reach out to is the first step. FEDA is available to help you find answers or understand the programs and mechanisms for support, but several other government agencies and industry associations are also providing important resources and communications. The following is a list of contacts for many of the most vital groups that have been involved with the COVID-19 recovery and relief efforts.

Congress

Find Your Legislators: https://www.usa.gov/elected-officials

Small Business Administration

For help applying for an Economic Injury Disaster Loan: Call 800-659-2955 or email disastercustomerservice@sba.gov

SBA Answer Desk: 800-827-5722

Find Your SBA District Office: https://www.sba.gov/local-assistance/find/

Find an Eligible Lender for the Paycheck Protection Program: https://www.sba.gov/paycheckprotection/find

Federal Reserve

Phone: 202-452-3000

Email: https://www.federalreserve.gov/apps/ContactUs/feedback.aspx

Twitter: @federalreserve

Facebook: https://www.facebook.com/federalreserve

U.S. Chamber of Commerce

Small Business Service: Call 800-638-6582 or email smallbusiness@uschamber.com

Twitter: @uschamber

Facebook: https://www.facebook.com/uschamber/

Neil Bradley, executive vice president and chief policy officer: nbradley@uschamber.com

National Association of Wholesaler-Distributors

Phone: 202-872-0885

naw@naw.org

Twitter: @NAWorg

Facebook: https://www.facebook.com/NAWorganization/

LinkedIn: https://www.linkedin.com/company/national-association-of-wholesaler-distributors

Dirk Van Dongen, president and
CEO: dvandongen@naw.org

Jade West, chief government relations officer: jwest@naw.org

Blake Adami, vice president of government relations: badami@naw.org

Seth Waugh, associate vice president of government relations:swaugh@naw.org

Joy Goldman, vice president – administration and manager – government relations: jgoldman@naw.org

Centers for Disease Control and Prevention

Phone: 800-232-4636

Email: https://wwwn.cdc.gov/dcs/contactus/form

National Restaurant Association

Phone: 800-424-5156

Twitter: @WeRRestaurants

Facebook: https://www.facebook.com/WeRRestaurants/

LinkedIn: https://www.linkedin.com/company/national-restaurant-association

Sean Kennedy, executive vice president of public affairs: skennedy@restaurant.org

Occupational Safety and Health Administration

Phone: 800-321-6742

Find an OSHA Office: https://www.osha.gov/contactus/bystate

Twitter: @OSHA_DOL

Cybersecurity & Infrastructure Security Agency

Twitter: @CISAgov

Facebook: https://www.facebook.com/CISA

LinkedIn: https://www.linkedin.com/company/cisagov

Email: cisaservicedesk@cisa.dhs.gov

Federal Communications Commission

Phone: 888-225-5322

Twitter: @FCC

Facebook: https://www.facebook.com/FCC

Ajit Pai, chairman: Ajit.Pai@fcc.gov

Patrick Webre, bureau chief, consumer and governmental affairs: Patrick.webre@fcc.gov

U.S. Chamber Continuing Advocacy Push

As companies across the country strive to survive as they deal with the effects of COVID-19, the U.S. Chamber of Commerce is working on their behalf to develop and advocate programs that will keep businesses in operation.

Ron Eidshaug, vice president of congressional and public affairs, gave FEDA members an update on those efforts in March during a special session presented by the FEDA Advocacy Council. The virtual meeting covered business challenges created by COVID-19 and provided information about vital federal programs to help them manage the emerging crisis. Fortunately, Eidshaug painted an encouraging picture of the work being done.

“The Chamber is lucky that between the big team we have in Washington D.C. and across America, we have a federation of state and local chambers on virtually every main street,” Eidshaug says of his message to FEDA members. “We can share information in real-time. We’ve been working hard to make sure our members and businesses know about the relief coming from Washington – especially the Paycheck Protection Program and SBA’s disaster loans – and we’ve been able to share real-world experience about the pandemic and dealing with the new law with decision-makers in D.C.”

Now that the first wave of coronavirus relief and recovery programs are in place, dealers and distributors have been applying for low-interest lows and other funding that will help their business weather the disruption. “Congress created the Paycheck Protection Program (PPP), amped up SBA’s Economic Injury Disaster Loan (EIDL) program, and created things like the Employee Retention Credit,” Eidshaug says. “There are a lot of tools out there from Congress and the administration. Talk with your bankers and see what programs make the most sense for your individual circumstances.”

While the initial round of funding was substantive, Eidshaug notes that additional relief efforts will be needed. “We’re working to understand how well PPP and EIDL and other programs are working so that we can push Congress to enhance them if need be. And, we will be working to make sure that there is enough money available in both of those programs.”