Back in Business: Information Every Idaho Employer Should Know

parsonsbehle.com
BACK IN BUSINESS: INFORMATION EVERY
IDAHO EMPLOYER SHOULD KNOW
Wednesday, May 13, 2020

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Webinar Format
 All Lines Muted
 Q&A
 Webinar Will Be Recorded
 Slides Will Be Shared With All Participants

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Things are changing rapidly. We are working extremely hard to keep
up with all that is happening. This webinar is based on available
information as of May 13, 2020, but everyone must understand that
this webinar is not a substitute for legal advice. If there are questions
about the information contained in the presentation and how it applies
to your business, then you should contact your legal counsel. This
presentation is not intended and will not serve as a substitute for legal
counsel on these issues. Given the complexity and rapidly changing
landscape, you must consult with your legal counsel on these issues.
Legal Disclaimer

Idaho Overview & “Return to Work”
Roadmap
Amy A. Lombardo – Shareholder

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Status of Reopen in Idaho
 Governor’s Guidelines for Opening Up Idaho
o 4 Stage Plan**
o Stage 1 Employers:
• Continue to encourage telework whenever possible
• Return employees to work in phases IF physical
distancing, personal protections and sanitation
are feasible.
o Physical distancing required through at least June 26
(through Stage 4)
o Vulnerable persons should not return to work until at
least June 13, with accommodations (Stage 4)

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“Return to Work” Roadmap
1. Set up decision team
2. Identify relevant data & guidance
3. Prepare your written plans and policies – we can help
4. Prepare the space
5. Prepare the people
6. Communicate
**Be prepared to react quickly and adapt to new processes

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“Return to Work” Roadmap – Initial
Considerations
1. Leadership – the Tone from the Top
2. Communication
o employee & consumer confidence vs. employees
will fill a lack of information void
3. Documentation
4. Confidentiality
5. Mental Health of your team

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“Return to Work” Roadmap – Identify
Relevant Data & Guidance
Your reopening plan should account for and follow guidance:
 Centers for Disease Control and Prevention (CDC)
o CDC has guidance on social distancing and cleaning standards
o Identify a workplace coordinator to oversee your COVID-19 plan
 Occupational Safety and Health Administration (OSHA)
o OSHA has significant and extensive regulations and guidance
regarding safety of workers and the workplace
 State and Local Guidance, Central & Southwest Health
Dept.
 Industry Best Practices

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 OSHA Guidance on Preparing Workplaces for Covid-19
o Develop an Infectious Disease Preparedness and Response Plan
o Prepare to Implement Basic Infection Prevention Measures
o Develop Policies & Procedures for Prompt Identification and
Isolation of Sick People, if Appropriate – critical to protect workers
and visitors
o Develop, Implement and Communicate about Workplace
Flexibilities and Protections
o Implement Workplace Controls
o Follow Existing OSHA Standards – General Duty Clause

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 OSHA Guidance on Preparing Workplaces for Covid-19
o Classify Worker Exposure to Covid-19

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 OSHA Guidance on Implementing Workplace Controls
o Elimination/Substitution
• Not permissible here
o Engineering Controls
o Administrative Controls
o Safe Work Practices
o PPE

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“Return to Work” Roadmap – Prepare or
Revise Written Plans & Policies
 Create Additional Policies/ Review Existing Policies – we can help
o Families First Coronavirus Response Act leave policies
o Review emergency plans, remote work policies
o Protocol for cleaning
o Protocol for employee, vendor, or customer COVID-19 positive
o Covid-19 Screening – temperatures, symptoms, exposure
 Include guidelines for disciplining non-compliant employees
 Consistency in application

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“Return to Work” Roadmap – Prepare the
Physical Space
o Close COMMON AREAS where personnel are likely to congregate
and interact, or enforce strict social distancing protocols.
o Walk through workplace from parking to lobby, work spaces, etc.
• Cleaning and spacing concerns
• High touch areas
o Identify high traffic/congregation areas
• Elevator, kitchen and dining rooms, breakrooms, bathroom, stairwells
• Shared spaces and landlord cooperation & cleaning.
o Identify and manage traffic flow or assign spaces
o Check and increase ventilation

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“Return to Work” Roadmap – Physical Space
 Frequent cleaning and disinfecting of workspaces
o CDC has a list of over 300 approved cleaning products to use
o Train your employees on how to store and use disinfectants
 Cleaning protocols
• Wipe down after use – copier, kitchen, bathroom, etc.
• Hire additional cleaners during day
• Employees responsible for own space, phone, keyboard, etc.
o Placement of safety items and disposal for safety items
 Involve landlord/other involved parties

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“Return to Work” Roadmap – People
 Employees/Vendors/Customers
 CDC & State of Idaho: Increase social distance between
employees and customers
o Return to Work in Phases or Shifts
• Volunteer basis, business groups, stagger based on job duties or guidance
• Discrimination concerns
• When to return Vendors/Customers
• Vulnerable persons
o Screening, Testing, Communication on new policies, Training

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“Return to Work” Roadmap – Communicate
 Employees, Vendors, Customers, Landlord, Public
o Frequent and regular training
o Written (new policies, signage) & Oral communication (safety
huddles, virtual or spaced team discussions, phone calls).
 Monitor Employee & Guest Response
o Open communication channels
o Use of surveys or technology to monitor employee questions
o Designated Covid-19 coordinator
 Understand and monitor employee stress levels – if you
have a health or wellness plan, remind employees to use it

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“Return to Work” Roadmap – Communicate
 TRAINING
o Daily Team Meetings/Safety Huddles
o Reminders regarding safety issues – constant training
o Issues that have arisen
o Opportunity for Employees to discuss feedback and tips
 Documentation
o policy receipt, training, and topics covered and attendance at
trainings and daily safety huddles

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Business Travel & Meetings
 Idaho:
o Remote meetings until at least Stage 2 (fewer than 10, spacing)
o Reschedule conferences until at least Stage 4 (more than 50)
 CDC: Advise employees before traveling to
take additional preparations:
 Check the CDC’s Traveler’s Health Notices for the latest
country specific guidance and recommendations for each
country to which you will travel.
 (Non-essential travel resumes in Stage 3, certain areas)

Personal Protective Equipment/Face
Coverings

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Face Coverings at Work
 CDC recommends wearing cloth face coverings in public
settings where other social distancing measures are difficult
to maintain, especially in areas of significant community
transmission.
 OSHA recommends allowing workers to wear masks over
their nose and mouth to prevent them from spreading the
virus.
 These face coverings are not surgical masks or respirators.

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Personal Protective Equipment (PPE)
 When cleaning and disinfecting, employees should always
wear gloves and gowns appropriate for the chemicals being
used. Additional personal protective equipment (PPE) may
be needed based on setting and product.
 CDC does not recommend the use of PPE in workplaces
where it is not routinely recommended.
 Facilities can use the hierarchy of controls, such as
administrative, and engineering controls – these strategies
are even more effective at preventing exposures than
wearing PPE.

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“Idaho’s rebound from COVID-19 and our
path to prosperity start with employee and
consumer confidence, which leads into
business stability and growth, and eventually
promotion and attraction.”
- Governor Brad Little

Screening & Temperature Checks
Christina M. Jepson – Shareholder

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Screening for COVID-19
 Normally screening and temperature taking would not be
allowed at work except in very unusual circumstances
 A pandemic is an unusual circumstance
 The CDC recommends screening
 The CDC, federal government, and state governments say
employees with symptoms should not come into the
workplace
 These are only tools—an employee can have COVID-19
and not have a fever, not have other symptoms, and not
know about exposure

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Taking Temperatures and Screening for Symptoms
 Temperature taking and screening must be non-
discriminatory
 Medical information must remain confidential
o Separate file
o Only shared on a “need to know” basis
 Should keep a log of
o Either all temperatures or all temperatures above the threshold
o Any COVID-19 symptoms
o Any exposure

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Taking Temperatures
 Have a written policy – we can help
 Set a criteria
o The CDC says that anyone with a temperature of 100.4 has a fever
o Employers have used cutoffs from 100 to 100.4
o If someone is at or above the cutoff, they should not come to work
until cleared
 Train on policy & procedure
 Follow policy and document actions

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Screening for Symptoms & Exposure
 Symptoms
o Continually check updated information – CDC, EEOC
o Anyone with symptoms should not come to work until cleared
 Exposure
o Close contact with someone who tested positive for COVID-19 in
the last two weeks
o Tested positive for COVID-19
o Travel to a high-risk area—14 day quarantine
o Anyone with a positive test or exposure should not come to work
until cleared

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Methods & Practical Considerations of
Taking Temperatures
 How will temperatures be taken and screening be
conducted
o At home before reporting to work
o At work
 Thermometers
o Start early to procure thermometers, supplies for cleaning
thermometers, masks, cones, and other supplies
o Preferably contact free
o If not, must sanitize between each use

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Taking Temperatures (at home)
 If employees will take their temperatures and report their
symptoms from home, you need to do training on how it will
work
 You need to make sure all employees have access to
working thermometers and equipment for screening
(computers, apps, telephones, etc.)
 Procedure for calling in and reporting temperatures and
answering questions
o Taking a photo
o Taking a temperature on Zoom or FaceTime

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Taking Temperatures (at work)
 Who will take the temperatures?
o Employee take their own temperatures at work
o Someone at work with medical training
o Hire people to come on site or use app
o Someone at work who is trained
o Provide PPE for those who take and masks for those having their
temperature taken

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Issues to Consider: Temperature Taking
at Work
 Same protocols for minimizing exposure
o Maintaining social distancing
o Minimizing crowds
o Cleaning equipment
o Cleaning high touch areas
o Industry, CDC and other health guidelines
 Other issues
o Compensation for screening time
o Refusing to be tested or provide answers

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Issues to Consider: Temperature Taking
at Work
 Options
o Outside of the workplace--CDC recommendation that screenings
be conducted before entry to a workplace. Physical distancing
applies.
o Drive-thru screening process--traffic controls, signs and markings
o A trailer or other temporary structure in the parking lot
o Inside the facility--wash hands, hand sanitizer, physical distancing,
tape, parking cones, set up “lanes” on the floor

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 Failure to pass
o When employee will be allowed to return to work
o Procedures for returning to work
o Whether remote work is available
 Follow-up
o Determine if employee was tested and result, or received medical
information indicating a likely Covid-19 diagnosis
o Notify appropriate individuals with whom employee had contact in
accordance with CDC guidance, confidentiality considerations
under the ADA and state law
Screening – Failure to Pass

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Screening – Failure to Pass
 Return to work procedures
o Employees with a fever or other symptoms should not return to
work until the following criteria are met:
• The employee certifies in writing that the employee is fever-free and has
been completely symptom free for at least three (3) days; AND
• At least seven (7) days have passed since the later of the onset of symptoms
that led to the employee being sent home or a positive COVID-19 test.
OR
o The employee provides documentation from a medical provider
confirming that the employee can return to work, that the employee
had a negative test for COVID-19 (if testing is available), and that
any lingering symptoms, if applicable, are not the result of a
contagious illness.

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Vulnerable Persons
 Vulnerable persons
o Employees
o Those who live with employees
 Vulnerabilities
o 60 or older
o Immunosuppressed or compromised
o Heart disease, lung disease, kidney disease, cancer, diabetes,
asthma, lupus, rheumatoid arthritis, cystic fibrosis, Crohn’s
disease, AIDS/HIV
 List is always changing—stay informed

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Vulnerable Persons
 The federal and state mandates/recommendations provide
that employers should protect vulnerable employees and
their family members
o As Idaho goes into a new stage those who are vulnerable to the
virus need to be protected.
o Special accommodations for these employees should be made in
the workplace if they are unable to work from home.

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Vulnerable Persons
 The law limits what you can do
o Treating someone 60 or older differently (without a request) could
be age discrimination
o Treating someone who is pregnant differently (without a request)
could be pregnancy discrimination
o Treating someone with an underlying condition differently (without
a request) could be disability discrimination
o Asking someone about their underlying conditions could violate the
ADA

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Vulnerable Persons
 So how can you protect employees and their family members
o Continue teleworking to the extent possible
o Allow flexibility to the extent possible
o If possible, use a volunteer program for coming back to work
o Ask a series of questions with a single yes or no answer—not required to
disclose reason
o Let employees know that they can request an accommodation under the
ADA or your own policies—teleworking, extra cleaning, extra social
distancing, changing work, changing schedule
o Consider whether FFCRA (Response Act) coronavirus leave applies

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ADA Accommodations
 Employees can self-disclose disabilities and request
accommodations
o Employers must engage in the interactive process with employees
who request reasonable accommodations, determine if the have a
disability under the ADA, and accommodate the request if doing so
would not create an undue hardship for the employer’s operations.
o Employers should also engage in a similar process with vulnerable
employees as the government has requested
o Examples: designating one-way aisles; using plexiglass, tables, or
other barriers to ensure minimum distances between coworkers
whenever feasible;

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Refusing to Work
 What if an employee refuses to work?
o Proceed cautiously
o Talk to the employee
o Listen for potential requests for ADA accommodations
o If there is no ADA issue and the employee is simply “scared” you
can take action

Practical Guidance on How to Administer
& Enforce New Policies & Leave Laws
Liz M. Mellem – Shareholder

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Families First Coronavirus Response Act (FFCRA)
 Requires employers to provide paid sick leave and paid family medical
leave in certain circumstances related to COVID-19
 Effective April 1, 2020 through December 31, 2020
But how do you document the leave request, the approval or
denial of a request, and the credits your business claims as
the result of approved leave?
o Answer: carefully, consistently, and thoroughly
 All documentation must be kept for 4 years (IRS guidance)
o To utilize the tax credit allowed under the FFCRA, employers must have FFCRA
leave eligibility properly documented
o 4 year clock starts ticking when tax becomes due or is paid, whichever is later

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Documentation Needed for FFCRA Leave
 Four required categories of information to substantiate
either type of paid leave under FFCRA:
o Employee’s name;
o Date(s) leave is requested and provided;
o Support for the qualifying (COVID-19 related) reason for the paid
sick leave being requested; and
o Statement that the employee is unable to work or telework due to
that qualifying reason

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Documentation to Support Qualifying Reason
for Paid Sick Leave
Additionally, the DOL requires employees provide to the employers additional
information depending on the reason for the requested paid sick leave:
 Government-issued quarantine or isolation order: name of the government entity
that issued the order and a copy of the order (the copy of the order is optional);
 Health care provider’s advice to self-quarantine: name of health care provider
who gave the advice and a note from the provider containing the directive (the note
is optional)
 Employee has COVID-19 symptoms and is seeking diagnosis: symptoms
employee is experiencing, whether employee has had recent travel and/or known
exposure to positive COVID-19 case, medical diagnosis (when obtained) and note
from health care provider, note from health care provider if employee is advised to
self-quarantine
o Each of these categories of information is optional

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Documentation to Support Qualifying Reason
for Paid Sick Leave (continued)
 Employee caring for person subject to government (or health care provider’s)
order/advice to self-quarantine: Name of governmental entity ordering
quarantine/isolation or name of health care provider advising self-quarantine, name
of person employee is providing care, relation of person to employee, copy of
governmental order or copy of provider’s advice (this copy is optional)
 Employee caring for child whose school/care provider is unavailable: Name
and age of each child employee is caring for, name of school or provider who is
unavailable, written communication or notice of closure/unavailability for reasons
related to COVID-19 (communication/notice is optional), statement by employee that
no other suitable person is caring for child during the leave requested, if child is 14+
a statement that special circumstances require employee to care for child during
daylight hours

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Documentation to Support Expanded Family
and Medical Leave
 Employees can only take expanded FMLA if they are caring for a child
whose school/care provider is unavailable due to COVID-19
o In addition to name of employee, dates of leave requested/provided, and
statement that employee is aunable to work/telework, employee must provide:
• Name and age of each child employee is caring for, name of school or provider who
is unavailable, written communication or notice of closure/unavailability for reasons
related to COVID-19 (communication/notice is optional), statement by employee that
no other suitable person is caring for child during the leave requested, if child is 14+ a
statement that special circumstances require employee to care for child during
daylight hours
• This is the same documentation for the identical reason for claiming paid sick leave
 Remember: EFMLA counts against the employee’s 12-week bank of FMLA leave; it
is not an additional 12 weeks of leave. So, be sure to keep track of all leave already
taken and how the EFMLA impacts the availability of leave for the rest of the rolling
12-month period for that employee

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Additional information to collect and retain…
 Documentation of why leave was denied (if true);
 If leave was granted:
o Documentation showing how employer determined amount of qualified sick
and/or family leave wages (e.g., records of work, telework, employee’s regular
hours of work per week, determination of regular rate of pay)
o Documentation showing how employer determined amount of qualified health
plan expenses that employer allocated to wages
Practical Guidance: You cannot ask for more documentation beyond
these categories unless the IRS or DOL changes guidance/regulations
in the future
Practical Guidance: If possible, establish a separate pay code for
FFCRA leave entitlements to help you clearly track the leave and
ensure your tax credit calculations are correct

Positive COVID-19 Employee
Sean A. Monson – Employment & Labor Chair

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Testing
o EEOC Guidance: Employers may take steps to determine if
employees entering the workplace have COVID-19.
o “[A]n individual with the virus will pose a direct threat to the health
of others.”
o “Therefore, an employer may choose to administer COVID-19
testing to employees before they enter the workplace to determine
if they have the virus.”
o Medical Tests must be:
– Job related
– Consistent with business necessity
o Where failure to test poses a direct threat to employees, testing
should be done.

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Testing Considerations
 Employers should ensure that tests are accurate and
reliable.
 FDA  Local Health District
 CDC  Continually check for updates
 Recognize testing limits
 False positives  False negatives
o Any test provides a snapshot of one moment in time for employee
 Not a replacement for other measures
 Compensate hourly employees for time spent on testing

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When An Employee Tests Positive*
(Employee Welfare)
 Be human; empathize
 Follow CDC guidance
o Isolate employee; send employee home for 14 days
 Assure the employee that you will not reveal their identity
within the workplace
 Cooperate with local officials
o EEOC guidance updated as of 4/9/20 – you may disclose the
identity of the employee to a public health agency.
*Assume those employees with pending test results or those
who were exposed to a Covid-19 positive, are positive

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When an Employee Tests Positive (Business
Continuity Planning)
 Do you have a plan to quickly test all employees?
 Are you already working remotely?
 Did you institute staggered shifts so that everyone is not
exposed at once?
 Decide whether you need to close for a period of time for
cleaning – individual circumstances may dictate
 Do you have a plan for those employees who may not be
able to go home if they are exposed at work?
o Do employees have immunocompromised individuals at home

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When an Employee Tests Positive (Legal)
 Is it possible to determine where employee contracted the
virus – if known, was it at work?
o If yes, check state workers’ compensation law
o notify workers’ compensation carrier
o record the incident in OSHA log
 Is the employee eligible for sick leave benefits, have a
accrued leave?
 Does your short-term disability policy apply?
 Have you sufficiently documented efforts and trained
employees? Overcommunicate at each stage & train

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Testing, Isolating & Contact Tracing*
 Execute Plan for Testing All Employees or those with close
contacts
 Execute Contract Tracing Plan
o Did you have a sign in/sign out policy?
o Did you reduce or eliminate shared or communal workspaces?
 Notify other employees; advise them to quarantine
 Engage Local Authorities; Coordinate with Health District
 Establish a timeline for when
* Employers are not epidemiologists but should train on this

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Introduction
Common Employer Questions

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Things are changing rapidly. We are working extremely hard to keep
up with all that is happening. This webinar is based on available
information as of May 13, 2020, but everyone must understand that
this webinar is not a substitute for legal advice. If there are questions
about the information contained in the presentation and how it applies
to your business, then you should contact your legal counsel. This
presentation is not intended and will not serve as a substitute for legal
counsel on these issues. Given the complexity and rapidly changing
landscape, you must consult with your legal counsel on these issues.
Legal Disclaimer

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Amy A. Lombardo
alombardo@parsonsbehle.com
Presenter Contact Information
Sean A. Monson
smonson@parsonsbehle.com
Christina M. Jepson
cjepson@parsonsbehle.com
Liz M. Mellem
amellem@parsonsbehle.com

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