Potential Legal Issues Stemming from the Reopening of Businesses

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Lawyer 2 Lawyer: Law News and Legal Topics

Potential Legal Issues Stemming from the Reopening of Businesses

05/01/2020

Margaret R. Kurlinski: There are a number of legal issues to keep in mind. The one that comes to mind immediately is privacy. How are you protecting this information that’s being collected? How are you using it? Do you have procedures in place to make sure that that information isn’t somehow inadvertently shared with anybody else?

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog named May It Please The Court and have two books out titled ‘The Sled’ and ‘How To Get Sued’.

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With certain states that are reopening across the nation after the COVID-19 pandemic or in some instances during the pandemic, employers could soon face a host of legal issues when their employees return to work. For instance, based on the decision of their governors, retail stores in South Carolina and salons, barbershops and tattoo parlors in Georgia are included in the first round of businesses set to reopen.

For these businesses safety of their customers and employees will necessitate new safety protocols and potentially expose employers to liability. At this point in time in California those types of businesses are relegated to stage 5, the last group to open.

Well, today on Lawyer 2 Lawyer we are going to be discussing the various states’ reopening of the businesses, what legal issues can arise and the safety standards that employers need to put in place for their employees and their customers.

To do that, we have got a great show for you today. Our guest is Margaret Kurlinski. She is a shareholder and chair of Godfrey & Kahn’s Labor & Employment Practice Group. Meg assists clients with a variety of labor and employment matters including management of day-to-day employment matters, drafting and enforcing restrictive covenant agreements, administering Family and Medical Leave laws, advising on federal and state discrimination claims, conducting unlawful harassment investigations and drafting affirmative plans.

And a recent article written by members of the Godfrey & Kahn Firm titled ‘Sneak Peek: Legal Issues to Consider When Re-Opening Your Business’ was recently featured in the National Law Review.

So welcome to the show Meg.

Margaret R. Kurlinski: Hi. Thanks for having me.

J. Craig Williams: Well, very glad to have you. Your firm is located in Wisconsin, Godfrey & Kahn, talk to us about Wisconsin’s stay Safer at Home Order and the background behind it.

Margaret R. Kurlinski: So the Safer at Home Order is currently in place. It’s a pretty restrictive order in the scheme of things. Presently only essential businesses can continue in-person employment. A couple of weeks ago our order was further narrowed to limit employment even in those essential businesses to only those employees strictly necessary to perform essential operations. So in-person employment is pretty limited until the end of the order, which is scheduled for May 26 presently.

And naturally to the extent in-person employment is occurring companies here in Wisconsin are required to implement social distancing, increased cleaning and disinfection and then just practices to prevent the disease from entering the workplace.

J. Craig Williams: And apparently Wisconsin has as you said earlier before started a pretty catchy little name the Badger Bounce Back plan, what’s going on there?

Margaret R. Kurlinski: The Badger Bounce Back, I am partial to the name, it’s similar to President Trump’s opening up America Again plan in that it outlines a phased approach to opening up businesses. At present we don’t have a date in which that phase 1 will occur. The governor has set certain community health and safety metrics that we need to meet in Wisconsin before we open up into phase 1.

Phase 1 is still pretty limited. We won’t have any restaurants, you mentioned tattoo parlors, the lawns, all of those are closed until I believe phase 3 to the extent that they would have full operations. So more than anything it would be getting people back into some of those production and support services that aren’t essential presently, but don’t require as much physical proximity to one another.

(00:05:07)

J. Craig Williams: Well, here in California our courts are presently closed for the most part except for emergency hearings. How are things in Wisconsin?

Margaret R. Kurlinski: Likewise, I believe jury hearings have been delayed until the end of May.

J. Craig Williams: Ours is being done on a county-by-county basis which is driving everybody insane because there are all different dates for different things when they are going to reopen and so forth.

But let’s take a look at what we are talking about in terms of workplace COVID-19 safety preparedness plans and protocols. Is there such thing as a formal plan at this point or are these just kind of generalized wise guidelines to follow?

Margaret R. Kurlinski: So there is no requirement at this time to have a safety plan. I think that companies have an opportunity as in jurisdictions like Wisconsin where we have not bounced it back yet that we are planning for the bounce back to be thoughtful in putting together a safety plan because coronavirus isn’t going away and employee concerns and community concerns about the spread of the disease are going to continue to exist.

So I am advising and I think others in this area are advising that employers think pretty critically about their operations and what they are doing and kind of go through a detailed analysis which we can get into or not about what parameters you want to put into place and if you are going to do that, go ahead and commemorate it and put that in writing.

The guidance that exists right now on the do’s and don’ts of workplace safety is very confusing and it sometimes conflicts with one another. So putting in place what you think are your best efforts in protecting your workforce is something that may be a useful tool in defending a claim in the future, but more practically providing employees reassurance about returning to work and that they are going to be safe when they return to work.

J. Craig Williams: Well, OSHA has come out with something called an Interim Enforcement Response Plan that you folks mentioned, your firm did in its article on the National Law Review. What role does that play into this Return to Work Program?

Margaret R. Kurlinski: So the Interim Response Plan outlined really how OSHA is going to handle complaints and investigations related to COVID-19. Part of or one of the first steps in an investigator’s analysis of a workforce is asking for what policies and procedures are in place. So while not required it’s certainly something that would be useful to have on hand if OSHA knocks on the door.

They have not provided a form of policy or guidance. Different states have. Our Department of Health and Safety has a pretty generic model form that can be accessed, so I am sure other states have the same. I think it’s important though of course not to just work purely from a form, but to customize it for your workforce, what you can and what you cannot practically do.

J. Craig Williams: And as you said, things are changing moment by moment and information is conflicting from state to state, even from agency to agency within the same state. But certainly from the federal government as well, there has been apparently an order issued to the some of the meatpacking plants in the Midwest to remain open so as to not interfere with the food supply chain. How is that going to work?

Margaret R. Kurlinski: Well, in addition to the order to remain open that came through yesterday, just a day or two before that the CDC and OSHA issued joint guidance for safety of meat processing facilities and recommended best practices as it relates to spacing, staggered shifts, work shields and the like.

At first blush it appears those two actions are contradictory, but they do seem to have been reconciled in the actual order signed by President Trump which does encourage those meat processing facilities while to stay open to also comply to the extent possible with that CDC and OSHA guidance.

OSHA then issued a notice this morning in a very similar vein kind of reconciling the two issues and clarifying that the CDC guidance should not be used by state and local governments as a basis for affirmatively closing meat processing facilities, but rather as a guide on how to keep those facilities open and hopefully safe.

(00:10:04)

J. Craig Williams: Let’s throw one more wrench into the works here because this is occurring in various states and specifically kind of close to you. I went to Iowa Law School and in that state the Iowa governor has not issued a Stay at Home order and in fact has issued an order that says that when you are recalled to work by your employer, if you fail to go you are not going to get any more unemployment insurance. That sounds to me like a law school exam question. What issues does all of that raise?

Margaret R. Kurlinski: Goodness, the months of March and April have been law school exam questions for labor and employment attorneys. The unemployment issue is an interesting public policy issue because with the stimulus funds it is a very rich benefit in unemployment through July. And of course there are these conflicting interests of everybody, of folks wanting to stay on unemployment and not go to work and essential businesses needing workers.

So the Iowa order is explicitly stating what is already inherent in the system and that is if work is available, you are ineligible for benefits. And for the most part that’s true in any jurisdiction, not just Iowa. There is a very limited circumstance where a quit, if you will, so they voluntarily leave employment, has to be related to either having a COVID-19 diagnosis, being a primary caregiver of a child that’s out of school, there is pretty limited circumstances where a quit would entitle anyone to unemployment in most any jurisdiction. And simply having a fear of contracting the virus, is it a sufficient basis from which to gather unemployment or to be eligible for unemployment.

J. Craig Williams: What type of liability issues arise if in fact it does occur that you become infected and perhaps then die?

Margaret R. Kurlinski: Well, that’s another good law school exam, where did you contract the illness, and if we are talking from an employment perspective, if you could prove that you contracted the illness at work, arguably that injury should be covered under workers’ compensation. This great bargain that was struck with workers’ compensation that employees are entitled to benefits but essentially there is limited tort liability for employers, of course it varies from jurisdiction to jurisdiction but that’s the general premise.

J. Craig Williams: And of course what plays into that is the negligence part of workers’ compensation and whether or not the actions taken by the employer were known or unknown to prevent COVID-19, whether they were sufficient at the workplace, it does raise a whole host of law school exam questions.

Margaret R. Kurlinski: Right. And so then we kind of circle back to where we started at the beginning. If some individual or plaintiff’s counsel is going to try to break out of the workers’ compensation rubric, in most jurisdictions it’s a pretty high standard to prove that the employer was intentionally neglectful and you as the employer would want to be in a position to kind of defend the safety procedures that you had just generally, so referring back to those plans.

But also the individual treatment of that employee because there is a lot more to an employee simply expressing fear of returning to work, there are other laws that might pop up. If that employee’s fear of returning to work is because they have an underlying health condition that makes them more susceptible, a compromised immune system, then we are in the land of the Americans with Disabilities Act and an employer’s obligation to go through the accommodation and interactive process to determine if there is a way to accommodate a potential medical condition that is kind of the root of the fear.

J. Craig Williams: Exactly right. Well, before we move on to our next segment we are going to take a quick break to hear a message from our sponsor. We will be right back.

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(00:14:56)

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Meg Kurlinski, Shareholder and Chair of Godfrey & Kahn’s Wisconsin Labor & Employment Practice Group. We’ve been talking about the legal issues that were necessary to consider when reopening your business, and Meg, largely we’ve been talking about businesses and so forth and their relationship with employees.

I know labor is your specialty, but what’s going to happen when the businesses turn around and have to start dealing with customers that are coming to their business? What kind of liability issues arise there?

Margaret R. Kurlinski: Well, that’s still going to bring it back to employment because that’s my happy space, but also address your question. But I think that when you’re talking about customers coming into a worksite, you still have employment issues because you have these obligations to both parties, both the customers and your employees to maintain a safe workplace under the General Duty Clause provided for under OSHA. And you had to take reasonable measures likely with respect to customers and clientele, so that you are not placing your employees in danger as a result of those interactions.

I think when you’re thinking globally about clients, customers and employees and those measures you have to continue to refer to the general guiding principles. You cannot be making decisions on a discriminatory basis, so you cannot, for example, exclude a customer because of their national origin or some kind of suspicion, you would want to be consistent in your application of either temperature testing or request for information about whether or not they’ve had any symptoms recently.

Also when we get to this topic of inquiring about medical histories and/or medical exams like a temperature check or requiring a COVID-19 test, there are a number of legal issues to keep in mind, and the one that comes to mind immediately is privacy. How are you protecting this information that’s being collected? How are you using it? Do you have procedures in place to make sure that that information isn’t somehow inadvertently shared with anybody else?

I also think that you need to be mindful of local biometric laws and different jurisdictions that put limitations on biometric measures, is an infrared temperature screen adore a biometric test that is going to be contrary to local law? Has that been reconciled in this public health emergency? And really kind of navigating those privacy issues as it relates to those inquiries.

J. Craig Williams: How is contract tracing going to play into this? I mean, what role do employers play, do they have an obligation to report a COVID-positive employee, who do they report it to, how is the employer going to handle those issues about reporting information to governmental inquiries on contract-tracing and the like?

Margaret R. Kurlinski: Yeah. As I understand it, the CDC guidance and most local guidance is to allow the medical professional that makes the diagnosis to be the one to contact public health officials more than anything to streamline reporting. So in most jurisdictions that responsibility does not lie on the employer.

Now the contact-tracing most likely will. I know that in both President Trump’s Bounce Back plan and Wisconsin’s Bounce Back plan, there are expectations in there that employers comply with and facilitate contact-tracing. So of course employers would have to answer the phone call of public health officials and go through those questions either with the employer, with the public health official or some combination of the two to figure out who those individuals have had contact with.

And you can imagine that it puts employers in a tricky position. Of course, they need to protect their workforce and that their ultimate responsibility is the safety of their workforce, but they also are practically trying to run a business. So you can see where there is a somewhat of a conflict of interest in relying exclusively on an employer to be the one that does the contact-tracing.

J. Craig Williams: Certainly. When there has been a spate of legislation that’s come out on a federal level, the Family First Coronavirus Relief Act, how does that play into the traditional FMLA in terms of what are the differences, what requirements the employers are supposed to be meeting under the Families First Coronavirus Relief Act that are not necessarily part of the normal FMLA?

(00:20:05)

Margaret R. Kurlinski: Yeah, so portions of the Families’ First leave are built out under the traditional FMLA structure, which means in particular that when folks are looking for paid leave-related to caregiving responsibilities of children that are out of school and it’s limited to that circumstance; that counts against an employee’s overall FMLA entitlement.

So under federal FMLA, you get up to 12 weeks of leave in a year, you have an individual that had a knee replacement in February, took four weeks of leave. When the Families’ First Act was published and regulations came out, it says 12 weeks everywhere for purposes of this caregiver leave.

Well, that’s not necessarily accurate for an individual that has already taken four weeks, that has already drawn down the balance and there’s only eight weeks remaining. I think sometimes as employers try to digest and incorporate all the new laws, they sometimes forget about the existing laws that are still in place and they need to remember that those are still operating in tandem with these new requirements.

J. Craig Williams: Right, let’s talk about a couple of things that are going to be coming up for employers like bringing workers back to a full time schedule whether they were bright to part-time before or whether employers even have enough work to bring back people back on a full-time basis, where are their obligations in those two elements?

Margaret R. Kurlinski: So employers have to kind of look long and hard at what their business looks like and what their needs are, and as they start determining exactly how many people they can bring back, they might be making some tough decisions about people that they won’t be bringing back, so converting a temporary furlough to a permanent termination.

And I think this is something that folks that have received the paycheck protection funds need to keep in mind as well. Those paycheck protection funds are in effect for those eight weeks that they have to spend it so there’s a lot of folks bringing people back to work, so to spend down those funds.

But practically if they know at the end of that eight-week period there really isn’t a future for a lot of those folks. In an employment attorney’s mind, we have to think about the Warren laws, the business closing and mass layoff laws that require advance notice of permanent terminations of employment, and if your pool of folks is large enough that are going to be permanently terminated, you need to effectuate that notice as soon as possible to comply with the law.

J. Craig Williams: And what’s the limit of the number of employees that applied to the Warren Act where you have mass layoffs?

Margaret R. Kurlinski: For federal purposes you are covered by Federal Warren if you have a hundred or more employees nationwide and the trigger for notice is a termination of 50 employees or 33% of your workforce, so the greater number, and it gets more complicated because you have to look at a 90-day period and we can further complicate the discussion that there are some arguments to be made for unforeseen business circumstances and the 60-day notice being reduced.

So the most practical takeaway I can provide is look at your numbers and look to the future so you can identify these issues if they are coming up because you do need to get in front of them.

J. Craig Williams: There’s been a big switch in the office arrangements where now people are working at home and employers have enabled other employees — its employees to be able to work remotely. What obligations do employers have in terms of the employees’ home office, like we are ergonomics and all the other issues in play?

Margaret R. Kurlinski: There’s so many fun issues with home offices. You have to be cognizant of any kind of expense reimbursements that are being created as a result of folks working at home. You continue as an employer to have a duty to facilitate a safe workplace even when your employees are working from home.

So maybe that is partnering with employees on ergonomic chairs if they need that kind of accommodation when they are at the normal workforce or more normal worksite. There are also interesting wage and hour issues that are created by telework for non-exempt hourly employees.

(00:25:05)

We need to track the time worked by those employees to ensure that there is appropriate overtime paid. It is more challenging sometimes to track hours worked and make sure that people are appropriately recording their time when you’re not sitting across from them or don’t see when someone is putting in some extra time and reminding them to put in for overtime and those kinds of issues.

And I think that employers have probably in my experience surprised themselves at how effective telework could be, and some of these concerns that they’ve had for a while have worked themselves out either with online Jabber programs or other ways of kind of tracking log in/log off times that we can in fact keep an eye on hours worked by individuals.

J. Craig Williams: Well, we have just about reached the end of our program and I’d like to have you kind of conclude with your final thoughts and summarize and also give us your contact information so our listeners can reach out to you if they have more questions, and one of the last ones I have is, do workers’ compensation laws apply to remote workers?

Margaret R. Kurlinski: Yes, workers’ compensation laws will apply to your remote workforce. So if someone gets injured in the course and scope of working remotely, it would likely be covered under workers’ compensation.

You can find me at godfreyandkahn.com or I can be reached at my email [email protected].

As far as final takeaways, I just think it is advisable to as an employer that’s ramping back up for the bounce back and getting ready to spend some time looking at the safety guidance that is available from so many sources and it does take a while to wade through. But finding those requirements that are mandatory for you whether that be through the state regulations or otherwise and really thinking about how to implement those procedures and really get them written down updated as things change, I think it is going to be one of the most useful tools, employers are going to have as we venture into this unknown of returning to the workplace while the Coronavirus is still a very real concern.

J. Craig Williams: Great. Well, thank you very much, Meg. We really appreciate your joining us today. I’d like to thank Meg Kurlinski for joining us. It’s a pleasure having her on the show.

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I’m Craig Williams, thanks for listening.

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