ASE Quick Links

ASE COVID-19 FAQs for Employers
ASE COVID-19 Related Events
ASE COVID-19 Employer Response Survey Results
ASE COVID-19 Business Impact Survey Results
ASE COVID-19 Return-to-Work Preparations Survey Results
ASE Virtual Work Resources
McLean & Company COVID-19 Resources (requires ASE member login)
Return-to-Work Checklist

 


 

There have been over 95,000 reported deaths in the United States with over 1.61 million reported cases.  More than 309,000 people have recovered.

It is reported that the global death toll from the virus is now over 333,000. COVID-19 has infected over 5.11 million people across the world. 1.95 million have recovered globally.

March 18, President Trump signed the Families First Coronavirus Response Act (H.R. 6201), which was passed by the Senate earlier that day. Mr. Mnuchin, the U.S. Secretary of Treasury, stated that the law is only the second in what is likely to be multiple legislative efforts to protect the economy—including workers and businesses—from the fallout of the spreading Coronavirus.  The sick day provisions would be effective no later than 15 days after the date of enactment, which would be April 2, 2020, and would expire on December 31, 2020.  Provisions of the new law can be found here.

Michigan Response and Resources

There are now 53,510 confirmed cases of Coronavirus in Michigan and 5,129 deaths.  

May 21 Governor Whitmer rescinded Executive Order 2020-91 and replaced it with Executive Order 2020-97.  The new Executive Order continues the requirements of Executive Order 2020-91 and  also requires that employees with a confirmed or suspected case of COVID-19 can only return to the workplace after they are no longer infectious as directed by the Centers for Disease Control and Prevention (CDC).  Further, the Executive Order requires that employers follow Executive Order 2020-36, and any executive orders that follow it, that prohibit discharging, disciplining, or otherwise retaliating against employees who stay home or who leave work when they are at particular risk of infecting others with COVID-19.  The governor has opened some areas of Michigan and limited retail environments as defined in Executive Order 2020-96.

The governor also relaxed her stay-at-home order, announcing that starting immediately people can begin gathering in groups of 10 or less with social distancing, and starting May 29 she is lifting her ban on nonessential medical, dental, and veterinary procedures.  Beginning May 26, retail businesses and auto dealerships can reopen for in-person service by appointment with a max of 10 people allowed in the establishment at one time.

The Stay Home, Stay Safe order is set to expire May 28 along with the state of emergency.  Governor Whitmer signed Executive Order 2020-77 to extend Michigan’s “Stay Home, Stay Safe” order to May 28, rescinding Executive Order 2020-70.

The order specifies that employers must treat employees who are staying home in compliance with the order as if they are taking medical leave under Michigan’s Paid Medical Leave Act. All Michigan employers, regardless of whether they are subject to Michigan’s Paid Medical Leave Act, must permit employees to stay in their homes and use leave, whether paid or unpaid, as follows:

 

  • For employees who test positive for, or are symptomatic of COVID-19, until:

3 days have passed since symptoms have resolved, AND

7 days have passed since symptoms first appeared or they were swabbed for a test that yielded a positive result

  • For employees who have had close contact with an individual who tests positive for, or is symptomatic of COVID-19, until:

14 days have passed since the last close contact with the sick or symptomatic individual, OR

The symptomatic individual tests negative for COVID-19

Executive Order 2020-36 also prohibits employers from discharging, disciplining or retaliating against an employee who fails to provide required documentation regarding a COVID-19 diagnosis or symptoms. 

The order does allow employers to take a negative employment action if an employee refuses to return to work after the specified timelines have passed or if the employee consents to the action. 

An employer that violates the order would be subject to the $1,000 administrative penalty included in the Paid Medical Leave Act. 

Nearly 70,000 Michigan workers filed for unemployment between April 25 and May 2, the U. S. Department of Labor said this morning, still a large number, though the lowest number of initial claims since the COVID-19 crisis began.  Nationally, 3.2 million people filed initial unemployment claims. In Michigan, 68,952 filed.  On Wednesday night, Governor Gretchen Whitmer signed Executive Order 2020-76, which extends and "builds upon" a previous order expanding unemployment in the wake of broad business closures.

Additional Executive Orders have been issued:

Governor Whitmer has ordered all K-12 schools to close from Monday, March 16 through Sunday, April 5.  All of Michigan’s public universities are suspending in-person classes in favor of remote learning due to the coronavirus. Macomb Community College and Oakland Community College are also following suit. Most schools plan to restart in-person classes in April. As of Monday at 3pm she has also ordered all bars and restaurants to close, serving take-out only.

On Sunday, March 15, The Michigan Department of Transportation issued an exemption from seasonal weight restrictions for motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 outbreaks. Direct assistance means transportation and other relief services provided by a motor carrier or its driver(s) to the immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.

The Michigan Small Business Relief Program was approved and authorizes the MEDC to provide up to $20 million in support for small businesses. The funding is divided between $10 million in small business grants and $10 million in small business loans to support businesses facing drastic reductions in cash flow and the continued support of their workforce.  The $10 million in grant funding will be provided to local or nonprofit economic development organizations throughout the state to provide grants up to $10,000 each to support certain small businesses that have realized a significant financial hardship as a result of the COVID-19 virus.  Learn more here.

The Michigan Department of Health and Human Services (MDHHS) activated the Community Health Emergency Coordination Center, and it has been working diligently with local health departments, health systems, and medical providers to make sure appropriate screening and preparations for Coronavirus disease 2019 (COVID-19) are being made. As part of Michigan’s efforts to combat the spread of COVID-19, Governor Whitmer has created four task forces:

  • The COVID-19 Task Force on State Operations, covering all aspects of state operations, including employment and facilities.
  • The COVID-19 Task Force on Health and Human Services, covering the provision of medical and human services, including protecting the healthcare workforce.
  • The COVID-19 Task Force on Education, covering K-12 public schools and universities and colleges.
  • The COVID-19 Task Force on Economy/Workforce, covering general economic impact, workforce, supply chain, business continuity, and related issues.

MDHHS has released interim recommendations for COVID-19 community mitigation for businesses, workplaces, schools, community organizations, health care institutions, and individuals of all ages, backgrounds, and health profiles.

To slow the spread of COVID-19 in Michigan, the Governor recommends some of the following as mitigation strategies.

  • Learn about the signs and symptoms of COVID-19, which include fever, cough and difficulty breathing.
  • STAY HOME WHEN YOU ARE SICK, and Individuals at risk of severe illness should consider staying at home to avoid others who are sick.
  • Regularly clean and disinfect frequently touched surfaces, such as doorknobs, keyboards, cell phones and light switches.
  • Communicate and reinforce best practices for washing hands and covering coughs and sneezes.
  • Be sure to maintain a supply of medications, food, and other essentials in your house.
  • Cancel or postpone large gatherings, conferences and sporting events (e.g. events with over 100 people).
  • Reduce in-person gatherings and activities, especially for organizations with individuals at risk of severe illness. Consider offering video or audio of events.
  • Consider tele-learning or tele-work opportunities, where feasible.
  • Limit non-essential work travel.
  • If you care for a loved one living in a care facility, monitor the situation, ask about the health of the other residents frequently, and know the protocol if there is an outbreak.
  • Limit visitors at hospitals and other facilities to only those who are absolutely necessary and implement screening of visitors for temperature and respiratory symptoms.

For more information on the Michigan response and actions, click here.

National Response and Resources

Payroll Protection Program

Click here to access the Small Business Owner's Guide to the CARES Act, which includes details on the Paycheck Protection Program (PPP) and more. The Paycheck Protection Program prioritizes millions of Americans employed by small businesses by directing $349 billion towards job retention and business operating expenses.  

Small businesses and eligible nonprofit organizations, Veterans organizations, and Tribal businesses described in the Small Business Act, as well as individuals who are self-employed or are independent contractors, are eligible if they also meet program size standards.

Under this program:
• Eligible recipients may qualify for a loan up to $10 million determined by 8 weeks of prior average payroll plus an additional 25% of that amount.
• Loan payments will be deferred for six months.
• If you maintain your workforce, SBA will forgive the portion of the loan proceeds that are used to cover the first 8 weeks of payroll and certain other expenses following loan origination.

Program Overview
The Paycheck Protection Program is designed to provide a direct incentive for small businesses to keep their workers on payroll by providing each small business a loan up to $10 million for payroll and certain other expenses. 

If all employees are kept on payroll for eight weeks, SBA will forgive the portion of the loans used for payroll, rent, mortgage interest, or utilities. Up to 100 percent of the loan is forgivable.

For a PPP fact sheet, click here.

Eligibility
Businesses – including eligible non-profits, Veterans organizations, Tribal concerns, sole proprietorships, self-employed individuals, and independent contractors described in the Small Business Act – with 500 or fewer employees may apply.  Businesses in certain industries may have more than 500 employees if they meet the SBA’s size standards for those industries.

A PPP loan must be spent 75% on payroll costs: On April 2, 2020, the Small Business Administration (SBA) issued an interim final rule clarifying certain parts of the new Paycheck Protection Program (PPP). The new rule came just one day before PPP opened, and it includes several important clarifications. Most important, it states that borrowers must spend at least 75% of their loans on payroll costs to qualify for loan forgiveness.  In addition, the rule offers more detail on when loan forgiveness can be reduced. The CARES Act reduces forgiveness of a loan proportionally if an employer cuts employee headcount. To determine its baseline headcounts, an employer can use either (a) the average number of full-time equivalents (FTEs) it employed from January 1, 2020 to February 29, 2020, or (b) the average number of FTEs it employed from February 15, 2019 to June 30, 2019. Whichever average the employer chooses, it must maintain that number for at least the eight weeks after receiving a loan. If headcount falls below that number, the Act reduces loan forgiveness by a proportional amount.  The Act also reduces loan forgiveness if an employer cuts employee compensation but only if the compensation cuts are more than 25%. 

To apply, click here.

Loan Forgiveness
For details on loan forgiveness, please see the Paycheck Protection Program section of the ASE COVID-19 FAQs.

CARES Act

March 27th, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.  

Payments to Individuals
The law provides a one-time direct payment of $1,200 to adults and $500 per child to American households, structured as tax refunds to allow the Internal Revenue Service to distribute the funds quickly. Payments will be made by direct deposit to bank accounts identified in tax returns. For those who did not file a tax return, IRS will coordinate with Health and Human Services for those on Social Security and SSI.  It’s not perfect, but the IRS will identify other ways for those to get the money they otherwise couldn’t make a deposit.

These payments will phase out starting with $75,000 of individual income, head of household at $112,000 and $150,000 for families.   These amounts are determined by the Adjusted Gross Income in either the 2018 or 2019 tax return (depending if they filed a 2019 return at the time of payment).  These payments fall by $5 for every $100 in income above the maximum salary $75,000, $112,000, and $150,000 and phase out at $99,000, $136,500 and $198,000 respectively.  To determine the amount of a payout, click here.

Unemployment
Unemployment will be extended from 26 weeks to 39 weeks.  There would be a one-time boost to benefits received of $600 on top of what they would otherwise receive for four months until July 31, 2020.  For example, if the person would receive $300 per week, they would get $900 per week.  Again, the boost ends July 31st. These benefits would be extended to contract workers, freelancers, and other nontraditional workers, who lack benefits in some states. The $600 benefit will be taxable (like regular unemployment benefits), but it will be disregarded in determining Medicaid or CHIP eligibility.

Because the workload may be overwhelming, the law provides states the ability to waive personnel standards through December 31, 2020 to expedite hiring of new staff to process unemployment claims, including allowing the hiring of independent contractors to process claims.

Retirement Funds
The law temporarily loosens the rules on hardship distributions from retirement accounts, giving people affected by the crisis access to up to $100,000 of their retirement savings without a 10% penalty. The law doubles the amount 401(k) participants can take in loans from an account for the next six months to the lower of $100,000 or 100% of the account balance. (IRAs don’t permit loans.)

The law waives required minimum distributions that are required to be made in 2020 from defined contribution plans (such as 401(k) plans) and IRAs. The waiver includes required minimum distributions that are due by April 1, 2020, because the account owner turned 70 ½ in 2019.

Health Accounts
The law allows a high deductible health plan to provide telehealth and remote care services without a deductible for 2020 and 2021. It permits tax-free reimbursement of feminine hygiene products from health savings accounts (HSAs), health reimbursement arrangements (HRAs), health flexible spending accounts (health FSAs), and Archer medical savings accounts (Archer MSAs).

Student Loans
The law allows most Americans with federal student loans to suspend their monthly payments through Sept. 30, 2020, without any interest accruing. It would also enable employers to make tax-exempt contributions toward their workers’ student-loan payments.  Employees can exclude up to $5,250 from gross income for payments made by their employers to pay off their student loans.

Auto Industry
The law authorizes hundreds of billions of dollars in loans if needed to the auto industry.  “If not for that, I would foresee quite a bit of bankruptcies,” said Jeremy Rice, automotive practice lead at accounting firm Mazars U.S.A.

Small Businesses
Businesses and nonprofits with up to 500 workers in a single location would be able to apply through qualifying banks for loans backed by the Small Business Administration. The loans would convert into grants that don’t have to be repaid for amounts spent on items such as payroll, rent, or utilities, with the grants reduced when workers are laid off.

The maximum loan amount is the lesser of (i) $10,000,000; or (ii) the average monthly payroll amount for the trailing 12 months (or, if not in business during the period from February 15, 2019 through June 20, 2019, then for the period from January 1, 2020 through February 29, 2020), times 2.5, plus the amount of any pre-existing emergency loan to be refinanced.

Borrowers are eligible to have loan amounts forgiven to the extent that they are used to pay for payroll expenses, interest on covered mortgage obligations, covered rent obligations, and utilities, during the period ending June 30, 2020. For federal income tax purposes, any amount that would be included in such borrower’s gross income due to such loan forgiveness is excluded from gross income.

Larger Businesses
The law allows for a special Section 13(3) Federal Reserve facility that provides financing to banks and other lenders that make direct loans to nonprofits and mid-sized businesses (between 500 – 10,000 employees). The loans will be subject to annualized interest rates of 2% per annum or less.  There will be no loan forgiveness under this program

Employee Retention Credit for Employers Subject to Closure or Experiencing Economic Hardship
The law would provide a refundable payroll tax credit for 50% of wages paid by eligible employers to certain employees during the COVID-19 crisis. The credit is available to employers, including non-profits, whose operations have been fully or partially suspended as a result of a government order limiting commerce, travel, or group meetings. The credit is also provided to employers who have experienced a greater than 50% reduction in quarterly receipts, measured on a year-over-year basis.

Wages of employees who are furloughed or face reduced hours as a result of their employers’ closure or economic hardship are eligible for the credit. For employers with 100 or fewer full-time employees, all employee wages are eligible, regardless of whether an employee is furloughed. The credit is provided for wages and compensation, including health benefits, and is provided for the first $10,000 in wages and compensation paid by the employer to an eligible employee. Wages do not include those taken into account for purposes of the payroll credits for required paid sick leave or required paid family leave, nor for wages taken into account for the employer credit for paid family and medical leave).

Delay of Payment of Employer Payroll Taxes
The law allows employers and self-employed to defer paying the employer portion of Social Security tax (6.2%) through the end of 2020, with all 2020 deferred amounts due in two equal installments, one at the end of 2021, the other at the end of 2022. Deferral is not provided to employers that avail themselves of SBA 7(a) loans designated for payroll.  It includes the employer portion of FICA.

FFRCA Tax Credit
The law also amends the Families First Coronavirus Response Act (the FFCRA) to allow employers to obtain an advance credit for the tax credit provided by the FFCRA. In addition, the amended FFCRA authorizes the Secretary of Treasury to waive the penalty for failure to deposit the employer’s portion of Social Security tax and Railroad Retirement Tax Act excise tax due to anticipation of the tax credit.

Loss Carrybacks and Forwards
Businesses will be able to apply losses (loss carrybacks) from 2018, 2019, or 2020 to past five years’ profits and claim refunds.  In the case of taxable years beginning before 2021, taxpayers will be entitled to a Net Operating Loss deduction equal to 100% of taxable income.

Business Interest Deduction
The law will allow businesses to elect to increase the interest limitation from 30% of ATI to 50% of ATI for 2019 and 2020 and allows businesses to elect to use 2019 ATI in calculating their 2020 limitation.


DOL

The U.S. Department of Labor (DOL) released a temporary rulemaking April 1 implementing the Families First Coronavirus Response Act (FCCRA). The rule is effective through Dec. 31st.    The DOL stated that this rule is bypassing the traditional rulemaking process as this is an emergency order. 


CDC

The CDC has issued a 60-page document, "CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again," briefly summarizing the CDC’s initiatives, activities, and tools in support of the Whole-of-Government response to COVID-19. 

As businesses and other organizations gradually open after the COVID-19-related slowdown, they will need to consider a variety of measures for keeping people safe, the CDC emphasizes. These considerations include practices for scaling up operations, safety actions (e.g., cleaning and disinfection, social distancing), monitoring possible reemergence of illness, and maintaining healthy operations. 

Interim guidance for helping several types of establishments (including employers with workers at high risk; schools and day camps; restaurants and bars; and mass transit) with these steps is provided in Appendix F of the CDC document; details as to high-risk workers are below. 

Interim guidance for employers with workers at high risk. As workplaces consider a gradual scale up of activities towards pre-COVID-19 operating practices, it is particularly important to keep in mind that some workers are at higher risk for severe illness from COVID-19. These workers include individuals over age 65 and those with underlying medical conditions. 

Underlying medical conditions. Such underlying conditions include, but are not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis. Workers at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. 

Employers should take particular care to reduce workers’ risk of exposure to COVID-19, while making sure to be compliant with relevant ADA and ADEA regulations. This means following CDC and the OSHA guidance for reducing workplace exposure for all employees. 

Seek help from local health officials. All decisions about following these recommendations should be made in collaboration with local health officials and other state and local authorities who can help assess the current level of mitigation needed based on levels of COVID-19 community transmission and the capacities of the local public health and healthcare systems. In addition, this guidance applies to workplaces generally; specific industries may require more stringent safety precautions. Finally, there may be essential workplaces in which the recommended mitigation strategies are not feasible. 

This interim guidance is laid out in a series of three steps, to inform a gradual scale up of operations. The scope and nature of community mitigation suggested decreases from Step 1 to Step 3, but some amount of community mitigation is necessary across all steps until a vaccine or therapeutic drug becomes widely available. 

Scaling up operations

In all Steps:

• Establish and maintain communication with local and state authorities to determine current mitigation levels in your community.
• Protect employees at higher risk for severe illness by supporting and encouraging options to telework.
• Consider offering workers at higher risk duties that minimize their contact with customers and other employees (e.g., restocking shelves rather than working as a cashier), if agreed to by the worker. 
• Encourage any other entities sharing the same workspace to also follow this guidance.
• Provide employees from higher transmission areas (earlier Step areas) telework and other options as feasible to eliminate travel to workplaces in lower transmission (later Step) areas and vice versa. 
Step 1: Scale up only if business can ensure strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place. 
Step 2: Scale up only if business can ensure moderate social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place. 
Step 3: Scale up only if business can ensure limited social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers. 
Safety action
Promote healthy hygiene practices (Steps 1-3)
• Enforce hand washing, covering coughs and sneezes, and using cloth face coverings when around others where feasible; however, certain industries may require face shields. 
• Ensure that adequate supplies to support healthy hygiene behaviors, including soap, hand sanitizer with at least 60 percent alcohol, tissues, paper towels, and no-touch trash cans. 
• Post signs on how to stop the spread of COVID-19, properly wash hands, promote everyday protective measures, and properly wear a face covering. 
Intensify cleaning, disinfection, and ventilation (Steps 1-3)
• Clean and disinfect frequently touched surfaces at least daily and shared objects between use.
• Avoid use or sharing of items that are not easily cleaned, sanitized, or disinfected.
• Ensure safe and correct application of disinfectants.
• Ensure that ventilation systems operate properly and increase circulation of outdoor air as much as possible such as by opening windows and doors. Do not open windows and doors if doing so poses a safety risk to individuals and employees using the workspace. 
• Take steps to ensure that all water systems and features (for example, drinking fountains, decorative fountains) are safe to use after a prolonged facility shutdown to minimize the risk of Legionnaires’ disease and other diseases associated with water. 
Promote social distancing (Steps 1-3)
• Limit service to drive-throughs, curbside take out, or delivery options, if possible (Step 1).
• Consider installing physical barriers, such as sneeze guards and partitions, and changing workspace layouts to ensure all individuals remain at least six feet apart. 
• Close communal spaces, such as break rooms, if possible (Step 1) or stagger use and clean and disinfect in between uses (Steps 2 & 3). 
• Encourage telework for as many employees as possible.
• Consider rotating or staggering shifts to limit the number of employees in the workplace at the same time.
• Replace in-person meetings with video- or tele-conference calls whenever possible.
• Cancel all group events, gatherings, or meetings of more than 10 people (Step 1), of more than 50 people (Step 2), and any events where social distancing of at least six feet cannot be maintained between participants (all Steps). 
• Restrict (Step 1) or consider limiting (Step 2) any nonessential visitors, volunteers, and activities involving external groups or organizations. 
• Limit any sharing of foods, tools, equipment, or supplies.
Limit travel and modify commuting practices (Steps 1-3)
• Cancel all non-essential travel (Step 1) and consider resuming non-essential travel in accordance with state and local regulations and guidance (Steps 2 & 3). 
• Ask employees who use public transportation to consider using teleworking to promote social distancing.
• Train all managers and staff in the above safety actions. Consider conducting the training virtually, or if in-person, ensure that social distancing is maintained. 
Monitoring and preparing
• Checking for signs and symptoms (Steps 1-3)
• Consider conducting routine, daily health checks (e.g., temperature and symptom screening) of all employees.
• If implementing health checks, conduct them safely and respectfully, and in accordance with any applicable privacy laws and regulations. Confidentiality should be respected. Employers may use examples of screening methods in the CDC’s General Business FAQs as a guide. 
• Encourage employees who are sick to stay at home.
Plan for when an employee becomes sick (Steps 1-3) 
• Employees with symptoms (fever, cough, or shortness of breath) at work should immediately be separated and sent home.
• Establish procedures for safely transporting anyone sick to their home or to a healthcare facility.
• Notify local health officials, staff, and customers (if possible) immediately of a possible case while maintaining confidentiality consistent with the ADA and other applicable federal and state privacy laws. 
• Close off areas used by the sick person until after cleaning and disinfection. Wait 24 hours to clean and disinfect. If it is not possible to wait 24 hours, wait as long as possible before cleaning and disinfecting. Ensure safe and correct application of disinfectants and keep disinfectant products away from children. 
• Inform those who have had close contact to a person diagnosed with COVID-19 to stay home and self-monitor for symptoms, and to follow CDC guidance if symptoms develop. If a person does not have symptoms follow appropriate CDC guidance for home isolation. 
• Sick employees should not return to work until they have met CDC’s criteria to discontinue home isolation.
Maintain healthy operations (Steps 1-3)
• Implement flexible sick leave and other flexible policies and practices, such as telework, if feasible.
• Monitor absenteeism of employees and create a roster of trained back-up staff.
• Designate a staff person to be responsible for responding to COVID-19 concerns. Employees should know who this person is and how to contact them. 
• Create and test communication systems for employees for self-reporting and notification of exposures and closures.
• Support coping and resilience among employees.
Closing (Steps 1-3)
• Check state and local health department notices daily about transmission in the area and adjust operations accordingly.
• Be prepared to consider closing for a few days if there is a case of COVID-19 in the workplace or for longer if cases increase in the local area. 
Acknowledging the difficulty its guidance imposes, the CDC notes that "widespread community mitigation combined with ongoing containment activities represents both an effective intervention for limiting the spread of COVID-19 and a serious threat to the economic well-being of the country and the world." 


 

EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic.  

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers to anticipating return to work situations, making reasonable accommodations, and harassment.

In response to inquiries from the public, the EEOC has provided resources on its website related to the pandemic in an employment context.  The agency will continue to monitor developments and provide assistance to the public as needed.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employ¬ment discrimination. More information is available at eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

There have been questions raised about how the Coronavirus current situation is impacted by the ADA and Rehabilitation act.   In response, the EEOC has posted a notice detailing what employers should know. The federal agency advised that ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should be taking.  Specifically:

  1. The guidance addresses how much information an employer may request from an employee who calls in sick, in order to protect the rest of its workforce during a Coronavirus-like event. The EEOC explained in an FAQ that ADA-covered employers may ask these employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Notably, all information about employee illness must be maintained as a confidential medical record in compliance with the ADA.

  2. In another FAQ, the guidance discusses when an ADA-covered employer may take employees’ body temperatures during a Coronavirus-like event. The EEOC noted that in general, measuring an employee’s body temperature is a medical examination. However, where pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or where pandemic influenza becomes widespread in the community—as determined by state or local health authorities or the CDC—then employers may measure their employees’ body temperature. "However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever," the guidance cautions.

  3. The guidance also addresses whether the ADA permits employers to require employees to stay home when they have symptoms of the Coronavirus. Yes, they can, according to the EEOC. "The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace," the guidance notes. When the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus, advising workers with symptoms of Coronavirus is not a disability-related action. Further, the ADA would permit this action where the illness is serious enough to pose a direct threat.

  4. In a final question underscored by the EEOC, the guidance discusses whether under the ADA, when employees return to work, employers may require doctors’ notes certifying their fitness for duty. Yes, according to the guidance. The ADA permits these inquiries "either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees," the EEOC said.


OSHA

OSHA has developed a COVID-19 Interim Response Plan:  On April 13, OSHA announced an interim enforcement response plan for the COVID-19 pandemic that provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHOs or inspectors) for handling coronavirus-related complaints, referrals, and severe illness reports. The memorandum, Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), is time-limited to the current public health crisis; it was effective immediately and remains in effect until further notice.   Under the interim enforcement plan, OSHA should investigate complaints, referrals, and employer-reported fatalities and hospitalizations to identify potentially hazardous occupational exposures and to ensure that employers take prompt actions to mitigate hazards and protect employees.  OSHA has received complaints about the lack of personal protective equipment such as respirators, gloves, and gowns; a lack of training on appropriate standards; and possible COVID-19 illnesses in the workplace.  In most cases, Area Offices should process complaints from non-healthcare and non-emergency response establishments as "non-formal phone/fax," following the non-formal complaint and referral procedures in the Field Operations Manual (FOM), CPL 02-00-163 (September 13, 2019). OSHA will forward complaint information deemed appropriate to federal partners with concurrent interests.  Source:  OSHA

OSHA has a dedicated webpage, which has posted information about Coronavirus, including links to interim guidance and other resources for preventing exposures to, and infections with, 2019 novel Coronavirus (2019-nCoV).  In additon, they have issued a new alert and guidance document on COVID-19 suggesting ways for employers to minimize and manage risks to their workforces.

Preventative steps for workers. OSHA recommends these general steps for all workers who may be exposed to 2019-nCoV:

  • Frequently wash your hands with soap and water for at least 20 seconds.
  • Avoid touching your eyes, nose, or mouth with unwashed hands.
  • Avoid close contact with people who are sick.

OSHA also makes further recommendations by industry for healthcare, clinical laboratory, airlines, border protection, and waste management workers.

Relevant OSHA standards. The federal health and safety agency also said that while there is no specific OSHA standard covering 2019-nCoV, some OSHA requirements may apply to preventing occupational exposure to the virus. Among the most relevant are these: OSHA's Personal Protective Equipment standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection.

  • The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 USC 654(a)(1), which 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 also noted that the agency’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit 2019-nCoV. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) that are not covered by the standard.

Quick Links

ASE has curated a list of helpful resources to assist employers in protecting their employees and plan for future outbreaks or spread of the illness.

ASE
ASE COVID-19 FAQs for Employers
ASE COVID-19 Related Events
ASE COVID-19 Employer Response Survey Results
ASE COVID-19 Business Impact Survey Results
ASE Virtual Work Resources
McLean & Company COVID-19 Resources (requires ASE member login)
Return-to-Work Checklist

LinkedIn Facebook Twitter YouTube

Contact

American Society of Employers

Victor Park West
19575 Victor Parkway, Suite 100
Livonia, MI 48152

Contact Us
Phone: (248) 353-4500
Fax: (248) 353-1224