Retail employers are facing challenges unique to their workforces due to the spread of COVID-19. Retailers must keep abreast of federal laws such as the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, in addition to guidance from federal agencies on these new laws. Below are answers to the most frequently asked questions perplexing retailers confronting issues such as health and safety, unions and employee relations, and employee benefits.
Health and Safety Issues in Retail
Question 1. What are the Occupational and Safety Healthy Administration’s requirements for COVID-19?
- Frequently wash your hands with soap and water for at least 20 seconds. When soap and water are unavailable, use an alcohol-based rub with at least 60 percent alcohol. Always wash hands that are visibly soiled.
- Avoid touching your eyes, nose, or mouth with unwashed hands.
- Avoid close contact with people who are sick.
The Occupational Safety and Health Administration (OSHA) does not have a specific standard or regulation that requires employers to take any particular actions with regard to COVID-19. Employers are, however, required to comply with Section 5(a)(1) of the Occupational Safety and Health Act (the General Duty Clause), which requires employers to maintain a “workplace that is free from recognized hazards.” In addition, OSHA’s Respiratory Protection Standard requires employers to provide appropriate respirators to control exposure to “occupational diseases caused by breathing air contaminated with harmful” substances. Respirators are often worn by healthcare workers to protect them from inhaling contaminated air that may cause disease.
On April 8, 2020, OSHA issued an alert titled, “COVID-19 Guidance for Retail Workers,” containing safety tips for employers to follow to help reduce employee exposure to the coronavirus. These tips include: encouraging workers to stay home, providing adequate handwashing facilities, routinely cleaning and disinfecting the workplace, using drive-thru or curbside pick-up, allowing workers to wear masks over their noses and mouths, and encouraging workers to report safety and health concerns.
OSHA’s Guidance on Preparing Workplaces for COVID-19 helps employers determine appropriate precautions and protective measures based on risk exposure levels. OSHA provides guidance for both workers who do not typically have potential exposure to occupational hazards like COVID-19 and workers in healthcare, deathcare, laboratories, airlines, border protection, solid waste and waste management, as well as business travelers. An employer’s compliance obligations depend in large part on the risk category of their facilities.
According to OSHA, workers in most retail establishments are considered “low” or “medium” exposure risk. Employees in the “low risk” category are those whose jobs do not require contact with people known to have or suspected of having COVID-19. For “low” risk workers, OSHA expects employers to monitor public health communications and keep employees informed. OSHA does not recommend implementing engineering controls (e.g., physical barriers) or using personal protective equipment (PPE) for “low risk” workers.
Workers with “medium” exposure risk are those whose jobs could require frequent contact (i.e., within six feet) with people who may be infected with COVID-19, but who are not known or suspected to be diagnosed with COVID-19. According to OSHA, this includes some high-volume retail settings. Employers with workers in this “medium” risk category may want to consider implementing engineering controls, such as installing physical barriers between employees and customers at the point of sale (POS). In terms of administrative controls, employers may want to consider ways to limit physical contact with customers and members of the public. For example, employers may consider limiting the number of customers allowed in an establishment at one time, sanitizing frequently touched items (such as shopping carts and credit card pin-pads), and promoting social distancing in check-out lines. Employers may also consider limiting or temporarily discontinuing certain operations that involve frequent and close contact with others. Other administrative controls include keeping employees informed about COVID-19 symptoms, minimizing contact with sick workers, and communicating with employees about the availability of worker health resources (e.g., on-site nurse or telemedicine services).
With respect to personal protective equipment for employees in “medium risk” jobs, OSHA’s guidance recommends that “each employer should select the combination of PPE that protects workers specific to their workplace.” Examples of PPE include: gloves, goggles, face shields, facemasks, and respirators where appropriate. According to OSHA, “PPE ensembles for workers in the medium exposure risk category will vary by work task, the results of the employer’s hazard assessment, and the types of exposures workers will have on the job.” OSHA’s PPE standard continues to apply. The OSHA guidance explains that workers in the medium risk category would require respirators only “in rare situations.”
The CDC has guidance providing recommendations on steps employers can take to maintain a healthy business environment and help prevent workplace exposures. An important component of that guidance is the CDC’s recommendations for environmental cleaning and disinfecting in the workplace. The CDC has issued additional guidance to employers on cleaning and disinfecting their facilities, which summarizes the recommend steps. In retail establishments, there are often several frequently touched objects that should be cleaned and disinfected multiple times throughout the day, such as keyboards, telephones, handrails, doorknobs, credit card machines, and POS systems. The CDC states that most common Environmental Protection Agency (EPA)-registered household disinfectants should be effective against the coronavirus and has provided a list of EPA-approved products for use against the coronavirus. Employers should make sure employees follow the manufacturer’s specifications for using these products. The CDC has also issued interim guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.
The CDC and OSHA guidance is just that – guidance. It is not legally binding. However, OSHA can use guidance to support violations of the General Duty Clause. To prove a violation of the general duty clause, OSHA must show the existence of a recognized hazard that could cause death or serious physical harm, and that feasible means to mitigate or eliminate the hazard could have been implemented. OSHA can use its own guidance or materials from the CDC to show that a hazard was recognized by an employer or its industry, and that feasible means to abate or eliminate a hazard existed.
Q2. What are the requirements when respirators are provided by employers for voluntary use? Can employers mandate respirator use?
A2. As explained above, retail workers (even those in the medium risk category) will require respirators only in rare situations. If an employer provides respirators or allows employees to wear them voluntarily, certain OSHA requirements will apply. On April 3, 2020, OSHA issued an interim Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic, which applies to all industries and workplaces. The new guidance supplements, but does not replace, the previously issued temporary enforcement guidanceaddressing the fit-testing requirements in the agency’s respiratory protection standard (29 C.F.R. § 1910.134) that applies to healthcare workers using N95 respirators as protection from COVID-19. All employers whose employees are required or permitted to voluntarily use respiratory protection must continue to manage their respiratory protection programs in accordance with 29 C.F.R. § 1910.134.
- Voluntary Use
If an employer provides respirators (including dust masks or N95 masks) and allows employees who may be worried about exposure to use them voluntarily, then the employer must provide a copy of Appendix D of OSHA’s Respiratory Protection Standard to the employees. The employer must also verify that the masks do not pose an additional hazard to employees. For example, the use of dirty masks may inhibit breathing, or the masks may not be appropriate if employees are exposed to other substances, such as airborne chemicals.
- Required Use
If the employer requires respirators (including dust masks or N95 masks), then OSHA’s Respiratory Protection Standard requires a written respiratory protection program that includes training, fit-testing, a medical examination, and other provisions. For example, an employer that requires employees who may have been exposed to COVID-19 or who may have been diagnosed with COVID-19 to wear dust masks must have a written respiratory protection program.
- Surgical Masks
OSHA does not classify surgical masks as “respirators,” and employers that require or permit employees to wear them do not have any compliance obligations under OSHA’s Respiratory Protection Standard. Surgical masks are generally used as a physical barrier to protect against large droplets or splashes of blood or bodily fluids, and will generally not prevent a healthy person from inhaling droplet contaminants like COVID-19. Surgical masks for people infected with COVID-19 may limit the spread of the illness to others.
- Cloth Face Coverings
According to the CDC, the use of simple cloth face coverings can help slow the spread of COVID-19. Cloth face coverings are not “respirators” or surgical masks. The CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), “especially in areas of significant community-based transmission.” According to the CDC, employers can approve employees’ supplied cloth face coverings.
Q3. What are employers’ obligations with respect to OSHA’s recordkeeping requirements for recording and reporting cases of COVID-19?
A3. OSHA’s recordkeeping requirements at 29 CFR Part 1904 require covered employers to record certain work-related injuries and illnesses on their OSHA 300 log. COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, 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 (the CDC information provides information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
- the case is work-related, as defined by 29 CFR 1904.5; and
- the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first-aid or days away from work).
The most difficult issue with the above criteria will likely be determining work-relatedness (i.e., whether the employee contracted it on the job). If it is not obvious that the illness was contracted in the work environment, under § 1904.5(b)(3), employers must carefully evaluate the employee’s work duties to decide whether one or more events or exposures in the workplace either caused or contributed to the resulting exposure to COVID-19.
As OSHA points out in guidance on injury and illness recordkeeping and reporting requirements, work-related COVID-19 cases may also be reportable to OSHA, as some of these cases result in a fatality or inpatient hospitalization (i.e., a formal admission to the inpatient service of a hospital or clinic for care or treatment) of one or more employees. These reporting obligations, however, are time-limited. Employers are not required to report a fatality that occurs more than 30 days after the work-related incident. Employers are not required to report inpatient hospitalization that occurs more than 24 hours after the work-related incident. Further, employers must only report to OSHA each inpatient hospitalization that involves care or treatment; an inpatient hospitalization that involves only observation and diagnostic testing is not reportable.
Some state plans have different requirements. In California, for example, if an employee contracts COVID-19 on the job or during business travel, it would be reportable to Cal/OSHA if the employee suffers a “serious injury or illness” as a result of the infection. A COVID-19 infection would be considered a “serious injury or illness” in California if it “requires inpatient hospitalization for more than 24 hours for other than medical observation.”
Q4. May employers check the body temperature of employees at work?
A4. Yes. The U.S. Equal Employment Opportunity Commission (EEOC) acknowledgesthat employers may implement temperature screening measures in response to the current COVID-19 pandemic. The EEOC has issued guidance permitting employers to check employees’ temperature before entering the workplace. The CDC recommends doing the same for critical infrastructure employees who may have had exposure to a person suspected or confirmed of having COVID-19. allows that employers pre-screen. The CDC and OSHA have not yet published guidance on the topic of how to conduct these health checks in the context of the workplace, though the CDC has issued guidance on similar entry screening concepts in the context of individuals entering shelters, which may serve as a useful point of reference. In addition, employers may wish to check with local public health authorities, as some have issued temperature screening guidance.
Retail employers that decide to conduct temperature screenings may wish to consult with medical professionals on procedures and safety protocols. Additionally, employers should make sure all temperature screenings are administered consistently. Employers should also be aware that screenings may raise important health care privacy and confidentiality issues.
Q5. Are there any requirements that must be followed when an employee is diagnosed with COVID-19?
A5. OSHA and the CDC have both issued guidance regarding what retailers should do when an employee is diagnosed. According to the CDC, an employee diagnosed with COVID-19 should be told to stay away from the workplace.
If an employee in the workplace is suspected of having COVID-19 (i.e., the individual is displaying symptoms of COVID-19) and cannot leave the worksite immediately, that employee must be quarantined immediately. For example, OSHA explains that employers should move such an employee to an isolation room and close the doors or, if an isolation room is not available, to a location away from workers, customers, and other visitors. OSHA’s guidance also states that employers may want to take steps “to limit spread of the employee’s infectious respiratory secretions,” including providing the employee with a surgical mask and asking him or her to wear it, if he or she can tolerate doing so.
The CDC’s interim guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19, advises employers with such employees to take several measures including: measuring the employee’s temperature and assessing symptoms, ensuring the employee is self-monitoring for symptoms, wearing a facemask at all times in the workplace for 14 days since exposure, ensuring the employee practices and maintains social distancing, and cleaning and disinfecting surfaces in their workplaces.
The CDC has also issued guidance for Cleaning and Disinfection for Community Facilities, (which applies to businesses as well), which contains “recommendations for cleaning and disinfecting rooms or areas occupied by those suspected or confirmed to have COVID-19.” The CDC recommends employers perform enhanced cleaning and disinfection after persons suspected/confirmed to have COVID-19 have been in the facility. If an employee is suspected or confirmed to have COVID-19, the CDC recommends businesses follow the steps laid out in this guidance.
Again, guidance from the CDC and OSHA is just that—guidance. However, as noted above, OSHA can use its own guidance or materials from the CDC to support violations of the General Duty Clause.
Union Activity / Positive Employee Relations
Q6. If a nonunionized employer notified its employees of an across-the-board hours reduction, and eight out of nine nonsupervisory employees walked off the job, would the employer still have any National Labor Relations Act concerns?
A6. Yes. The National Labor Relations Act (NLRA) protects the rights of employees to engage in “concerted activity,” which occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. This can include employees who engage in a walkout to protest a change to their terms and conditions of employment. In the above scenario, the nonsupervisory employees’ work stoppage is very likely to be considered protected concerted activity under the law. What this means is the employer cannot discipline employees for engaging in the walkout today. An employer can, however, have employees contact them individually to get their concerns and get a feel for whether they intend to continue the work stoppage or return to work tomorrow. They can be told that, if they are not working, they will not be paid.
Q7. What if the employees return to work the rest of the week and then go back out the next week in protest?
A7. The law does not protect “intermittent strikes,” which happen when an employee strikes for a short time with the intention of returning to work and then striking again later. For example, if an employee were to return to work tomorrow but then try to engage in another work stoppage next week because of this same issue, it is likely that the employee would not be protected under the law and could be disciplined.
Q8: What happens if an employer discharged the employees who have engaged in a protected walkout?
A8: If an employer discharged an employee who was engaged in a protected walkout, that employee can file a charge with the National Labor Relations Board (NLRB). The NLRB would investigate to determine whether the charge has merit. The remedy for unlawfully discharging an employee for engaging in protected concerted activity is typically backpay and reinstatement. If the NLRB found that the employer unlawfully discharged an employee, the company would be required to bring the employee back to work and pay the employee for wages lost while unemployed. The employer would also be required to post a notice in the workplace for 60 days informing employees that the employer will reinstate the wrongfully discharged employee (who will be named in the notice), remove any record of the discharge from the employee’s personnel file, make the employee whole, and not violate the NLRA going forward.
Retirement Plan Benefits
Q9. Are there any provisions in the Coronavirus Aid, Relief, and Economic Security Act that could adversely impact an employer that suspends its 401(k) match?
A9. There is a provision in the Coronavirus Aid, Relief, and Economic Security (CARES) Act that provides direct federal loans to employers that have between 500 and 10,000 employees, but only if they retain at least 90 percent of their employees as of March 24, 2020, “at full compensation and benefits.” Suspending the 401(k) match could mean that employees no longer have full compensation and benefits, but we do not yet have guidance about what is included in compensation and benefits with respect to this requirement.
Suspending matching contributions under a 401(k) plan will not affect the potential tax credit relief provided under the CARES Act for employers that fully or partially suspend operations or have a significant decline in gross receipts or prevent the employer from delaying deposit of its federal Social Security taxes.
Q10. Does the CARES Act allow employees affected by COVID-19 expanded access to their 401(k) plan funds?
A10. Yes. The CARES Act does permit 401(k) plans to distribute up to $100,000 from the plan to a qualified individual who has been impacted by COVID-19 and waives the 10 percent tax penalty for such a distribution. The rules also permit the qualified individual either to be taxed ratably on the distribution over a three-year period, or to repay the distribution to a qualified retirement plan or an individual retirement account (IRA). There is also some loosening of the 401(k) plan loan rules, allowing for larger loans and permitting a delay in loan repayments through year-end with an extension of the five-year loan term.
Q11. Does the CARES Act include provisions to make it is easier for executives to change their current elections to stop deferred compensation plan contributions?
A11. No. The CARES Act did not change the annual election requirements or the definition of “unforeseeable emergency” under Internal Revenue Code Section 409A. It is permissible to make an early distribution from a nonqualified deferred compensation plan and stop deferrals for the remainder of the tax year in the event of an unforeseeable emergency. At this time, however, the Internal Revenue Service (IRS) has not released guidance as to whether the COVID-19 pandemic will meet the 409A definition of an “unforeseeable emergency.”
Public Accommodations / Customers
Q12. What about accommodations under the Americans with Disabilities Act and issues regarding how retailers treat customers during the pandemic?
A12. A list of common customer-related issues and thoughts regarding how to handle situations such as customer screening, customer exclusion, modification of safety-neutral policies, can be found in our article, “Title III Coronavirus FAQs: Tips for Addressing Common ADA Title III Issues During the COVID-19 Pandemic.”
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.