Survey Finds Employers in Florida, Nation Concerned with Safety, Remote Work Accommodations and Liability as They Reopen Workplaces Amid COVID-1

Survey Finds Employers in Florida, Nation Concerned with Safety, Remote Work Accommodations and Liability as They Reopen Workplaces Amid COVID-19

In May, we provided guidance on post-pandemic life, as many employers shifted focus from navigating COVID-19’s complex and fluid landscape, including stay-at-home orders and mitigation measures, to reopening and returning to the “next normal” business operations. Littler’s June COVID-19 Return to Work Survey Report (found here)[1] revealed employers nationally remain concerned with when and how to return employees safely, as well as how to accommodate increasing remote-work requests and liability issues stemming from the rise in COVID-19-related employment claims. Closer to home, Phase 2 of the “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery” took effect June 5, 2020 for all Florida counties except Miami-Dade, Broward, and Palm Beach, encouraging Floridians to follow social distancing and safety protocols issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). Since then, Florida coronavirus cases have topped 200,000 with (as of article submission) a single-day record high of 11,458 cases reported on July 4. As this article was being written, the mayor of Miami-Dade rolled back some of the re-opening there, re-closing gyms, short-term rentals and all restaurants to anything other than take out and then reversed course by reopening gyms with certain safety precautions. As a result of this ever changing yet clearly serious situation, Florida employers continue to face a host of unknowns especially in light of the absence of statewide guidance and varying orders and guidelines from local authorities.

Timing and Safety Concerns

According to the survey, many nonessential – and thus previously closed – businesses appear cautiously ready to return employees to the physical workplace with approximately three-quarters (78%) expecting to reopen by the end of the summer (and 34% of those businesses planning to do so within one month). In doing so, employers are implementing numerous steps to maintain employees’ safety, including increased cleaning (90%), limiting employee contact in common areas (87%), providing and/or encouraging the use of face coverings or other protective gear (86%) and modifying workspaces to maintain safe distances (78%). In written feedback, many employers expressed concern about the difficulty of implementing safety measures and ensuring employee compliance while sustaining their workplace culture and employee morale.

At the end of June, the Florida Department of Health issued a Public Health Advisory recommending the following:

• • All Floridians should wear face coverings in any setting where social distancing is not possible
  • All individuals over the age of 65 and all individuals of any age with high-risk health conditions should limit personal interactions outside of the home
  • All individuals should refrain from participation in social or recreational gatherings of more than 50 people

Indeed, as early as June 20, many local jurisdictions began issuing orders requiring – to varying degrees and with certain exceptions – face coverings in public spaces, including Fort Lauderdale, Jacksonville, Miami, St. Petersburg, Tampa, and Orange County (including Orlando). On July 2, OSHA published a set of frequently asked questions (found here), which provides cloth face coverings are not personal protective equipment, or intended to be used in place of PPE, and are not covered by OSHA’s PPE standards. However, OSHA generally recommends employers encourage employees to wear face coverings at work and suggested employers may choose to ensure employees wear them as a feasible means of abatement in a control plan addressing hazards of SARS-CoV-2, the virus causing COVID-19.

Developing policies and best practices for health and safety policies and protocols, including wearing masks in the workplace, can be difficult as employers consider evolving federal, state and local guidelines. With no “one size fits all” template, communicating and providing appropriate training is key when implementing return to work measures. Ensuring compliance is also daunting and employers should consider how the policy will be disseminated, what corrective actions will be taken, if any, for violations, and how the policy and its provisions will be documented and updated as local orders and regulatory guidance changes. In additional to mitigation efforts such as face coverings, more than half (58%) of employers responding to the survey plan to conduct testing or health screenings on employees, with most preferring temperature checks (89%) and symptom screenings (72%) and a small number selecting antibody (8%) and antigen (7%) tests.

The U.S. Equal Employment Opportunity Commission, the agency enforcing workplace antidiscrimination and retaliation laws, recently (and after the survey results) released additional COVID-19 guidance on screening and testing employees (found here). The guidance clarifies employers cannot mandate tests detecting COVID-19 antibodies – which determine whether someone had COVID-19 even if that person was asymptomatic – before employees return to the workplace without violating the Americans with Disabilities Act. The EEOC said: “In light of CDC’s Interim Guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees.”

The EEOC also clarified that an employee entering the worksite requesting an alternative method of screening due to a medical condition is making a request for a reasonable accommodation, and the employer should proceed as it would with any such request. If the employer can provide the alternative screening easily and inexpensively, the EEOC recommends the employer voluntarily provide the same alternative screening to anyone who asks, without engaging in an interactive process. Alternatively, if the disability is not obvious or already known, an employer may request information to establish the condition as a disability and determine specific limitations requiring an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if the employer can provide the requested or an alternative effective accommodation, absent undue hardship.

Managing Remote Work Accommodations

The pandemic caused hasty change to telework for many employees. For some, the shift may be permanent and, indeed, many employers have accepted this reality and have started making this shift. Indeed, half of those surveyed are considering more remote work to reduce physical office costs – an unexpected benefit to going remote. Fifty-two percent of employers surveyed reported being flexible on granting valid requests for telework until the pandemic subsides, while 30 percent are considering remote work policy changes and allowing employees to remain remote if the employees are effective teleworkers.

However, moving either in the undefined short-term or in a more permanent way to telework poses new questions and possibilities some of which employers are already facing and others which will certainly present themselves in the future. 

In the early 2010s, many large companies were, as a matter of intentional policy, allowing more remote work.  Indeed a Deloitte Millennial Survey in 2017 found the percentage of millennials with “flexible locations” was 64%.  But, in 2017 and 2018, several of those same companies made public decisions to pull back and reduce or completely eliminate the teleworking experiences altogether. CEOs reported unexpected problems managing a remote workforce and diminished productivity and focus.  However, at the time, some HR professionals indicated telework policies could work, but were just rolled out too quickly. Now, employers face a new involuntary reason for telework and have been forced to adapt.

For example, a new wave of wage and hour questions are bound to present themselves – how does an employer effectively ensure employees are not working off the clock when they are necessarily not always physically at work? What does an employer do when an employee now asks for a new chair for a back problem or asks to have their “home office” retrofitted to accommodate a disability?  Does an employer need to pay for an employee’s home internet service if service is required to allow telecommuting? And, what of childcare – an issue Florida State University recently confronted.  When FSU announced it would enforce its policy prohibiting employees to provide childcare services while teleworking, community backlash was fierce and FSU clarified its position. On July 6 the Florida Department of Education issued an Emergency Order directing all state school boards and charter school governing boards open brick and mortar schools at least five days per week subject to advice and orders of the Florida Department of Health, other local health departments and executive orders while providing innovative learning environments for those children who are medically vulnerable or reside in the same household as medically vulnerable family members. While schools may reopen in August, the continued decrease in available childcare options before and after school (childcare facilities almost uniformly cannot accept as many children as they previously did) and dwindling options for financial help put parents in a tight spot.

One important way to address these and other concerns about managing a remote workforce is to be prepared and implement a teleworking program policy in place including a plan for reporting time, who is eligible for telework, workspaces including equipment to be provided, reviews and evaluations, changes to schedules, and communication. Creating a telework policy will reassure employees the employer desires to make remote work a success for all involved. Employers should consult with counsel to ensure that, as everyone adapts to this ever-shifting landscape, they keep current on their legal obligations under a wide range of local, state and federal laws and regulations.

Employer Liability Concerns

As Congress debates employer “liability shields” to protect against COVID-19 lawsuits, 71 percent of in-house counsel report being at least somewhat concerned about potential lawsuits upon reopening. Of particular concern are claims related to leaves of absence entitlements (68 percent), unsafe working conditions (59 percent) and workers’ compensation (43 percent). Florida’s Office of Insurance Regulation issued a memorandum on April 6 to provide guidance on workers’ compensation issues indicating first responders and health care workers who contract COVID due to work exposure would be eligible for benefits under Florida’s workers compensation statute.  This has led Florida employers to be concerned such policy could expand.  Additionally, on May 19, Florida’s Chief Financial Officer announced he will pursue legislation in the next regular legislative session to establish liability protections to “shield small business from liability for COVID-19 related claims, while still allowing legitimate lawsuits based on ‘reckless disregard for human life’ to move forward.”  Florida lawmakers have also recently met with Florida’s Governor to pitch a bipartisan plan to pass a new law in Florida that would include tort reform including limiting or at least delineating potential liability for COVID exposure at businesses.

Concern from employers appears well placed. Since March 17, lawsuits against employers for alleged coronavirus-related labor and employment claims have increased rapidly nationwide to 317 lawsuits (including 39 class actions). California leads the way with 50 cases, while Florida (44) follows closely behind. (New Jersey (33) and New York (29) round out the remaining cases.) The most common claims include retaliation (84), workplace safety (59), discrimination (54), and wage & hour (51). COVID-19 employment litigation has hit the healthcare industry hardest with 63.

Another development which may lead to significant liability is the new joint DOL/IRS guidance temporarily suspending many key COBRA deadlines. This announcement most notably suspended benefit plan participants’ deadlines for electing and paying for their COBRA coverage upon separation of employment.  The temporary relief is effective retroactive to March 1, 2020 and potentially impacts anyone who lost their active group health plan coverage on or after January 1, 2020.  Given the recent increase in COBRA class action filings in Florida, employers subject to COBRA should take quick action to (1) notify your plan participants of these new changes and (2) ensure your COBRA administrators are complying with these new rules. 

Conclusion

COVID-19 continues to impact Florida employers. Businesses are focused on reopening in the face of spiking coronavirus cases, ensuring continued worker safety and ongoing mitigation efforts. Florida employers must remain aware of changing regulations and local orders and keep employees informed of updated policies and protocols.

View the Littler COVID-19 Return to Work Survey infographic (found here)

Kimberly Doud and Nancy Johnson both practice law in the Orlando, Florida office of Littler Mendelson, the largest labor and employment law firm representing management. They are available to provide COVID-19 legal advice. For access to on-demand webinars and in-depth advice regarding these and other challenges facing employers with the onset of the COVID-19 pandemic, visit littler.com/coronavirus.