S T I N S O N L L P S T I N S O N . C O M

Coronavirus Task Force

Stinson has established a Coronavirus Task Force in support of short and long-term business needs asCOVID-19, commonly known as coronavirus, impacts companies and affects workforces and the globalsupply chain. The task force provides subject matter authorities as a quick-response team with current,authoritative legal guidance on the ever changing aspects of how COVID-19 impacts business.

From the onset of the virus, Stinson attorneys have been supporting clients with up-to-date andcoordinated legal guidance and timely alerts on the legal issues surrounding this virus. As business leadersmake decisions affecting customers, employees and communities, the task force provides creative,strategic guidance to clients on immediate and forward planning needs.

The Coronavirus Task Force leverages Stinson's bench strength of nearly 500 attorneys across 13 locations.

TASK FORCE MEMBERS

Task Force Leaders

● Chuck Hatfield, Regulatory/Governmental

● Molly Walsh Keppler, Employment

Task Force Members

● Christina Arnone, Insurance

● Brittany Barrientos, OSHA/Environmental

● Mike Campbell, Business Transactions

● Robin Carlson, Government Orders

● Liz Chatham, Immigration

● Amy Conway, Employment

● Tom Dowling, Employee Benefits

● Susan Warshaw Ebner, Government Contracts

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● Christine Eid, Real Estate

● Jason Engelhart, Health Care

● Alisa Nickel Ehrlich, Employment & Immigration

● Zane Gilmer, Litigation

● Jenni Ives, Employment & Education

● Tricia Kaufman, FDA Regulation

● Steven Kazmierski, Ph.D., IP & Biotechnology

● Kristin Berger Parker, Employment

● Elsa Manzanares, International Trade

● Sharon Markowitz, Force Majeure & Contract Litigation

● Erin Naeger, Lending

● Todd Phelps, Real Estate

● Patrick Respeliers, SEC Reporting, Corporate Governance & M&A

● Greta Bauer Reyes, OSHA/Hospitality

● Tom Salerno, Bankruptcy

● Steve Schemenauer, Construction

● Nate Van Emon, Lending

● Johnny Wang, Employment

● Gerald Weidner, Lending

CORONAVIRUS RESOURCES & FAQS

Our task force is dedicated to providing clients with up-to-date legal guidance and resources for employers.As information evolves rapidly, these key insights are intended to assist with compliance and address theunique legal issues related to COVID-19. Please contact legal counsel with any additional questions youmay have.

Coronavirus Additional Resources

Coronavirus Employment FAQs

CONTACT: Charles W. Hatfield | 573.636.6827 | chuck.hatfield@stinson.com

CONTACT: Molly Walsh Keppler | 816.691.2633 | molly.keppler@stinson.com

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TEAM

Christina Arnone

Brittany Barrientos

P. Michael Campbell

Robin K. Carlson

Elizabeth S. Chatham

Amy B. Conway

Thomas R. Dowling

Susan Warshaw Ebner

Alisa Nickel Ehrlich

Christine L. Eid

Jason Engelhart

Zane A. Gilmer

Charles W. Hatfield

Jennifer Ives

Patricia F. Kaufman

Steven T. Kazmierski, Ph.D.

Molly Walsh Keppler

Elsa Manzanares

Sharon R. Markowitz

Erin M. Naeger

Kristin Berger Parker

Todd M. Phelps

Patrick J. Respeliers

Greta Bauer Reyes

Thomas J. Salerno

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Stephen Schemenauer

Nate Van Emon

Johnny S. Wang

Gerald D. Weidner

REL ATED CAPABILITIES

Bankruptcy & Creditors' Rights

Business Litigation

Business Policyholder Insurance Coverage

Chemical & Pharmaceutical

Commercial Lending

Construction

Education Funding Litigation

Employee Benefits

Environmental & Natural Resources

Governance, Risk & Compliance

Government Contracts & Investigations

Government Solutions

Health Care & Life Sciences

Immigration

Insurance & Health Plans

International

Labor, Employment & Benefits

Mergers & Acquisitions

Real Estate & Public Finance

White Collar Criminal Defense & Special Investigations

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ALERTS

L ABOR, EMPLOYMENT & BENEFITS

7.2.20 IRS Issues Additional Guidance on Coronavirus-Related Distributions andPlan Loans under CARES Act

6.19.20 New Order from Arizona Governor and New OSHA Guidance Put Multi-State Employers in a Quandary with Reopening Plans

5.27.20 As Agencies Issue Updated Coronavirus Guidance, Existing Policies ShouldBe Evaluated and Updated

5.19.20 PPP Forgiveness Application Certif ication May Lead to EnforcementHeadaches

5.18.20 Insights from the New PPP Loan Forgiveness Application and Best Practicesfor Borrowers Seeking to Maximize Loan Forgiveness

4.11.20 COVID-19 Workplace Il lness and Death Claims

4.30.20 Return-to-Work Best Practices During the COVID-19 Pandemic

4.23.20 Immigration Executive Order in Response to COVID-19: 60-Day EntrySuspension of Employment-Based Immigrants

4.15.20 Multiemployer Pension Reform Likely on the Table in Phase 4 CoronavirusBill

4.13.20 You Got Your PPP Loan, Now What?

4.13.20 OSHA Considerations for Employers Deciding Whether to Require or AllowUse of Face Masks in the Workplace

4.10.20 CARES Act: Changes to Unemployment Compensation PresentOpportunities to Businesses and Employees

4.8.20 Arizona Stay at Home Executive Order

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4.3.20 DOL Issues Temporary Rule Promulgating Regulations on the FFCRA

3.31.20 Coronavirus Aid, Relief, and Economic Security (CARES) Act Signed intoLaw

3.30.20 Small and Mid-Sized Businesses Must Be Cognizant of the Requirementsthat Accompany CARES Act Relief

3.28.20 CARES Act Allows More Flexibil ity Regarding Health Care Coverage forIndividuals Impacted by COVID-19

3.28.20 CARES Act Provides Much Needed Retirement Plan-Related Relief forIndividuals and Employers Impacted by COVID-19

3.28.20 New IRS Guidance and CARES Act Provide Employers with AdditionalInformation about Tax Credits for Paid Leave

3.26.20 Minnesota "Stay-at-Home" Executive Order

3.25.20 What should an employer do if an employee is diagnosed with COVID-19?

3.25.20 DOL Issues Guidance on Families First Coronavirus Response Act

3.24.20 NLRB Holds Back on "Quickie" Election Rules Modif ication AmidstCOVID-19 Crisis

3.23.20 Current Immigration Impact and Compliance Flexibil ity due to COVID-19

3.19.20 Federal Families First Coronavirus Response Act: Employer LeaveRequirements

3.16.20 Be Wary of Potential HIPAA Traps When Responding to CoronavirusConcerns

3.13.20 Coronavirus Impacts Immigration Compliance and Travel Restrictions

3.11.20 IRS Issues Coronavirus Relief for High-Deductible Health Plans

2.28.20 Recommended Employer Response to Coronavirus Outbreak

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CORPORATE FINANCE

6.8.20 New Law Makes Major Changes to the Paycheck Protection Program

5.12.20 Relief for Middle Market Companies: New Details on the Main StreetLending Program

5.1.20 PPP Updates: More Interim Final Rules, FAQs and Unanswered Questionsfrom the SBA

4.24.20 SBA Posts New Interim Final Rule on PPP

4.23.20 Reconsidering PPP Eligibil ity – Should Public Companies and FinanciallyStrong Borrowers Repay PPP Loans?

4.20.20 Keeping Track: Summary Chart of COVID-19 Federal Benef its andPrograms for Businesses

4.17.20 NYSE Waives Shareholder Approval Requirements in Response to COVID-19

4.14.20 COVID-19 Relief for Middle Market Companies: The Federal Reserve's MainStreet Lending Program under the CARES Act

4.9.20 Applying SBA's Aff il iation Rules and Guidance to Private Equity and VentureCapital Portfolio Companies Seeking PPP Loans

4.7.20 New Paycheck Protection Program FAQs Released

4.4.20 SBA Issues New Guidance on Paycheck Protection Program

3.26.20 The Director’s Dilemma: An Overview of Director Fiduciary Duties whenInsolvency Looms

3.25.20 Impact of Coronavirus (COVID-19) on M&A and Private Equity

3.22.20 Conducting Shareholder Annual Meetings Virtually in Reaction to theCOVID-19 Coronavirus

3.21.20 Delaware Supreme Court Finds Federal Forum Selection Provisions areFacially Valid

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3.19.20 SEC Provides Temporary Relief to Investment Advisers From Forms ADVand PF Fil ing Deadlines

GOVERNMENT CONTRACTS AND GOVERNMENT SOLUTIONS

4.14.20 DoD Issues Class Deviation and Guidance to Implement CARES Act Relieffor DoD Contractors under Section 3610

3.30.20 Minnesota Regulatory Fil ing Deadline Relief

3.18.20 It's No Longer Business as Usual - Government Off ice Closures Due toCoronavirus

3.17. 20 COVID-19 – Minnesota's Response

3.12.20 Force Majeure and the Coronavirus (COVID-19)

2.21.20 The Impact of the Coronavirus on the Global Supply Chain

BANKRUPTCY & CREDITORS' RIGHTS

3.28.20 Updated: COVID-19 Related Moratorium on Foreclosures and Evictions

3.25.20 First COVID-19 Fraud Action Filed by the DOJ, as Broader Federal andState Enforcement Heats Up

REAL ESTATE & PUBLIC FINANCE

4.1.20 Real Estate and Construction Industries are Deemed Critical Sectors byGovernor Walz

3.27.20 Landlord Rent Relief Checklist

TAX, TRUSTS & ESTATES

4.1.20 CARES Act Provides Critical Tax Relief

3.25.20 IRS and Other Federal Agencies Provide New Guidance on Paid Leave TaxCredits

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3.20.20 Sales and Use Tax Extension for Minnesota Businesses Affected byCoronavirus Closures

OTHER COVID-19-REL ATED ALERTS

6.10.20 New OSHA COVID-19 Construction Guidance: How Does it Impact YourJob Site?

6.2.20 Top 10 Action Items for Contractors Reopening Their Off ices

5.19.20 Minnesota Legislature Adjourns: Special Session Ahead?

5.11.20 Minnesota Legislature Adjourns in Seven Days: Bonding Projects WillDominate Discussions

4.29. 20 Working with Environmental Agencies When Managing Business Impactsfrom COVID-19

4.24.20 U.S. Importers Can Postpone Duty Payments for 90 Days, But ReliefLimited

4.14.20 Pandemic Class Action Refund Lawsuits Against Airl ines Ignore Long-Standing Precedent

4.6.20 Modif ied Community Bank Leverage Ratio

4.3.20 California AG Issues Third Draft of CCPA and Holds Tight on JulyEnforcement

4.2.20 USPTO Extends Fil ing and Fee Payment Dates under CARES Act

4.1.20 Kansas Executive Stay Home Order and Exceptions Relevant to ConstructionIndustry

3.30.20 FDA's Policy in Response to Face Mask and Respirator Shortages Resultingfrom COVID-19

3.25.20 FDA Issues Temporary Policy to Address Hand Sanitizer Shortage

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3.23.20 FDA Issues Emergency Enforcement Policy for Remote Monitoring Devices

3.18.20 Medicare Dramatically Expands Coverage for Telehealth Services

CORONAVIRUS RESOURCES AND FAQS

Webinar Recordings

● Coronavirus and the Workplace Webinar

● Help! What Can I Do if the Coronavirus Prevents Me From Fulfilling My Contracts? Force Majeure andthe Coronavirus Webinar

In the News

● 6.15.20 Gerald Weidner Quoted on PPP Loan Considerations for Solo Entrepreneurs

● 6.1.20 Bloomberg Law Speaks With Habib Ilahi on Anticipated Healthcare Fraud Claims

● 5.20.20 Roy Goldberg Quoted on COVID-19 Impact on Airlines in Law360

● 5.20.20 Thomas Salerno Quoted on the Next Wave of Bankruptcies in The Economist

● 5.14.20 Johnny Wang Quoted on What PPP Loans Mean for Employees in Business Insider

● 5.6.20 Johnny Wang Interviewed on COVID-19 and Return to Work on St. Louis Radio Stations

● 5.4.2020 Stinson Partners Publish Second Article on Bankruptcy and the CARES Act with AmericanBankruptcy Institute

● 4.28.20 Susan Ebner Quoted on Available Federal Relief for Contractors During COVID-19 in Law360

● 4.21.20 Steve Quinlivan Talks SEC Expectations on "Coping Through COVID" Podcast

● 4.20.20 Habib Ilahi Authors Opinions on COVID-19 Impacts to HIPAA, Public Welfare

● 4.15.20 Harvard Bankruptcy Blog Features Stinson Attorneys on Cares Act and Dip Loans

● 4.15.20 Kansas City Star Quotes Partner Gerald Weidner on Paycheck Protection Program Guidance

● 3.27.20 Partner Steve Cosentino Quoted on COVID-19 and Data Privacy Laws

● 3.26.20 Zane Gilmer, Sharon Markowitz Quoted on Force Majeure and Breach of Contracts

● 3.20.20 Steve Schemenauer Featured in Finance and Commerce on COVID-19 Contracts

● 3.17.20 Partner Habib Ilahi Quoted on Justice Department's Coronavirus False Claims Response inBloomberg Law

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Government Resources

● DOL Coronavirus Resources

● DOL Families First Coronavirus Response Act: Questions and Answers

● DOL FFCRA Employee Rights Poster

● OSHA Guidance - COVID-19

● CDC Guidance - COVID-19

● CDC - Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease2019

● CDC Interim US Guidance for Risk Assessment and Public Health Management of Persons withPotential Coronavirus Disease 2019

● EEOC - Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

Other Resources

● The Coronavirus and its Likely Impact on the Bankruptcy World

● Your employer just received a PPP loan — here's what that means for you

CORONAVIRUS EMPLOYMENT FAQS

Stinson is regularly updating these FAQs, as the COVID-19 situation is constantly changing, with newlaws and guidance being issued rapidly. Employers should consult with their counsel for current guidanceand best practices on the topics covered here.

These FAQs address common employment law questions that have arisen in the midst of the COVID-19pandemic. While these FAQs are intended to assist you to navigate challenging legal issues, we urge you tofollow all guidance provided by the federal government, state or local governments, the CDC, officialhealth agencies, and to contact legal counsel for any questions you may have.

CAN AN EMPLOYER SEND SICK EMPLOYEES HOME?

Yes. Because a pandemic illness like COVID-19 could affect many employees, the U.S. Department of Labor(DOL) and the CDC encourage all employers to implement pandemic preparedness response plans. A planmay allow employers to send employees home if employees show symptoms of a pandemic illness.Employers should share this plan with employees as early as possible. If an employee becomes sick while atwork, an employer can send the employee home immediately. If an employee becomes sick while awayfrom work, an employer can tell the employee not to come to work, or if they show up to work, an employercan send the employee home immediately. However, employers are still subject to laws that prohibit

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discrimination, as well as to laws regarding the confidentiality of medical information. Employers shouldtake extra caution to implement any plan uniformly.

Whether an employer sends an employee home or tells the employee not to come into work, an employeewith a presumptive or confirmed COVID-19 diagnosis should not return to the workplace for 14 days. At theend of the 14-day period, the employee should contact HR or another person in a supervisory role beforereturning to work to confirm quarantine requirements were followed and that the employee is no longersymptomatic.

The CDC states that COVID-19 manifests with the following symptoms, which may appear 2-14 days afterexposure:

● Fever

● Cough

● Shortness of breath

An employee with a presumptive COVID-19 diagnosis who has not received a test can typically return towork after:

● The employee has had no fever for at least 72 hours without the use of medicine that reduces fevers.

● Other symptoms have improved (for example, cough or shortness of breath have improved).

● At least seven days have passed since symptoms first appeared.

An employee with a confirmed case of COVID-19, can typically return to work after:

● The employee no longer has a fever (without the use of medicine that reduces fevers).

● Other symptoms have improved (for example, cough or shortness of breath have improved).

● The employee has received two negative tests in a row, 24 hours apart.

At the end of the quarantine period, the employee should contact HR or another person in a supervisoryrole before returning to work to confirm quarantine requirements were followed and that the employee isno longer symptomatic. We recommend that employers consult with legal counsel prior to returningemployees with a presumptive or confirmed COVID-19 diagnosis to work.

Related Resources:

What should an employer do if an employee is diagnosed with COVID-19

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OSHA's Emergency Preparedness and Response Guide

Centers for Disease Control and Prevention's Interim Guidance for Businesses and Employers

Updated: April 3, 2020.

CAN AN EMPLOYER MONITOR EMPLOYEES' TEMPERATURES AT WORK?

Generally, measuring an employee’s body temperature is an unlawful medical examination under the ADA.The EEOC has issued guidance indicating that temperature taking may be lawful in a pandemic, ifrecommended by the WHO, CDC or a state or federal department of health. Effective March 18, the EEOCupdated its guidance to state that the CDC and state/local health authorities have acknowledgedcommunity spread of COVID-19. As a result, employers may measure employees' body temperature.However, employers should be aware that some people with COVID-19 do not have a fever.

Related Resources:

CDC's Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnelwith Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19)

CAN AN EMPLOYER REQUIRE SICK EMPLOYEES TO QUARANTINE?

Yes. If an employer has a reasonable belief, based on objective evidence, that the employee’s presentmedical condition would either (i) impair his or her ability to perform essential job functions with orwithout reasonable accommodation, or (ii) pose a direct threat (i.e., significant risk of substantial harmthat cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace, theemployer may require the employee to stay home for a specified period of time. The DOL states thatemployers are allowed to require an employee to self-quarantine for a certain period to be sure theemployee shows no symptoms.

Employers may also require employees to provide a doctor's note or a medical examination beforereturning to work. However, it is important to remember that an employee may face difficulties inobtaining a doctor's note or receive a medical examination during a pandemic outbreak.

The CDC’s recommended self-quarantine practices include:

● Stay home for 14 days

● Take your temperature with a thermometer two times per day and monitor for fever

● Watch for cough or trouble breathing

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● Do not take public transportation, taxis or ride-shares

● Avoid crowded places and limit your activities in public

● Avoid contact with and keep your distance (about 6 feet) from others

If the employee needs to seek medical treatment while in quarantine, the employee should contact theirown physician and/or follow the guidelines of their local health department. Many agencies arerecommending that individuals who think they may be infected with the virus call first before showing upat a health care facility.

CAN AN EMPLOYER REQUIRE QUARANTINE DUE TO AN EMPLOYEE'S TRAVEL?

Yes. An employer is within its rights to ask employees who travel internationally or domestically to anyhigh risk areas to self-quarantine for 14 days before returning to work. Employees should follow the sameself-quarantine protocols identified above. At this point, high risk areas may be defined as all internationallocations, all cruise ship travel, and domestic hot spots that have 100+ confirmed cases, as well aspotentially including any travel on a common carrier.

Employees should be notified that because domestic hot spots are changing rapidly, that any domestictravel may subject them to the risk of quarantine upon return.

To reduce risk, employers should recommend that employees take extra precaution for all leisure traveland should restrict or prohibit business travel to domestic hotspots and countries labeled as a Level 2 orhigher.

Related Resources:

CDC's Up-to-Date Data on Confirmed Cases in the U.S.

U.S. Department of State Travel Advisories

Updated March 22, 2020: Effective March 19, 2020, the US State Department issued a Level 4 travel advisorycautioning US citizens to avoid all international travel. Effective March 18, 2020, the State of Kansas issued amandate that anyone who travels to a "state with known widespread community transmission," defined by theMandate as of its effective date to include California, Florida, New York, Washington and certain counties inColorado, will be required to self-quarantine for 14 days upon return to Kansas.

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WHAT PAID LEAVE AND BENEFITS ARE AVAIL ABLE TO EMPLOYEES WHO AREABSENT FOR COVID-19 REL ATED REASONS?

Effective April 1, 2020, under the Families First Coronavirus Response Act (FFCRA), private employerswith fewer than 500 employees are required to provide qualifying employees with up to 80 hours of paidsick time pursuant to the Emergency Paid Sick Leave Act (EPLSA), and up to 10 weeks of leave paid at 2/3the normal rate of pay if needed to care for a minor child whose place of school or care has been closed dueto a public health emergency pursuant to the Emergency Family and Medical Leave Expansion Act(EFMLEA). For companies covered by the EPSLA and EFMLEA, those leaves should be exhausted asapplicable before analysis of other paid time off. Employers providing paid leave under the FFCRA will be100% covered by a dollar-for dollar refundable tax credit. The Department of Labor published an FAQ withadditional information. On April 1, 2020 the Department of Labor issued a Temporary Rule promulgatingregulations on the Families First Coronavirus Response Act (FFCRA) available. In addition, coveredemployees should post a notice of employees' rights under the act.

Employers who are not covered by the EPSLA or EFMLEA, or whose employees have exhausted EPSLA orEFMLEA leave, may require employees to use paid sick leave or PTO that the employer provides separatelyif the employee is required to quarantine, becomes sick, or must stay home to care for a family member. Ifthe employee no longer has available PTO, we recommend that employers exercise leniency with leave andPTO policies.

Generally, if an employee needs to be quarantined, they should either (a) be allowed to work from home ifpossible, (b) be allowed to use any applicable paid leave or (c) be allowed to use PTO donations from otheremployees.

If possible, employers should create a Payroll Code for absences specifically relating to coronavirus, andthose absences should be tracked to properly account for EPLSA, EFMLEA, or other leave entitlements.

Related Resources:

DOL Issues Temporary Rule Promulgating Regulations on the Families First Coronavirus Response Act

IRS and Other Federal Agencies Provide New Guidance on Paid Leave Tax Credits

Federal Families First Coronavirus Response Act: Employer Leave Requirements

Updated April 3, 2020.

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DO QUARANTINED EMPLOYEES QUALIFY FOR FML A LEAVE?

If an employee is actually infected, the CDC recommends the employee quarantine for 14 days or until thesymptoms are gone, whichever is longer. The employee may be entitled to paid sick time for this leaveunder the Emergency Paid Sick Leave Act (EPLSA). Under these circumstances, the employee also mayqualify for FMLA leave. If an employee is absent due to the need to care for a minor child whose place ofschool or care has been closed due to a public health emergency, the employee may qualify for up to 12weeks of leave paid at 2/3 the normal rate of pay under the EPSLA (which provides two weeks paid leave)and the EFMLEA) (which provides an additional 10 weeks).

Related Resources:

DOL Issues Temporary Rule Promulgating Regulations on the Families First Coronavirus Response Act

IRS and Other Federal Agencies Provide New Guidance on Paid Leave Tax Credits

Federal Families First Coronavirus Response Act: Employer Leave Requirements

Updated April 3, 2020.

CAN AN EMPLOYER REQUIRE EMPLOYEES TO WORK FROM HOME?

If the employee is able to work from home, yes. Requiring employees to work from home when possiblesupports social distancing practices recommended by the WHO and CDC. Employers should make plans toassure employees have access to the necessary resources to work from home, such as internal intranetaccess. Telework is also an option to permit continued work under many of the Shelter-in-Place Ordersbeing issued by state and local authorities. Employers should also assess security risks to their systems thatare associated with work from home, such as the use of personal computers and laptops to access anemployer's system. Employers in California (and potentially other jurisdictions) may be required toprovide reimbursement to employees for employee-provided facilities used in remote work.

CAN AN EMPLOYER IDENTIFY WHETHER AN EMPLOYEE HAS BEEN INFECTED?

No. An employer should not disclose the identity of an infected employee. However, the employer mayinform the office that someone who was present in the workplace was diagnosed with or exposed tocoronavirus. An employee may voluntarily disclose their own exposure or infection.

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CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO OBTAIN A MEDICALCERTIFICATION BEFORE RETURNING TO WORK AFTER STATING THEY HADSYMPTOMS, TESTED POSITIVE OR WERE SUBJECT TO A QUARANTINE?

While an employer has the right to request a medical certification before an employee returns to work, theCDC recommends employers do not make this request so as to not overwhelm the health system. Someemployers are using return to work certifications that may be completed by a treating health care provideror the employee, where applicable, to provide some reassurance to the employer that the employee cansafely return to the workplace.

Current CDC guidance for determining when it is appropriate to release someone from isolation, relies ona case by case analysis that includes meeting all of the following requirements:

● If an individual is not being tested to determine if they are still contagious, they can leave home after thesethree things have happened:

● They have had no fever for at least 72 hours (without the use of medicine that reduces fevers).

● Other symptoms have improved (for example, cough or shortness of breath have improved).

● At least seven days have passed since symptoms first appeared.

● If an individual is being tested to determine if they are still contagious, they can leave home after thesethree things have happened:

● They no longer have a fever (without the use of medicine that reduces fevers).

● Other symptoms have improved (for example, cough or shortness of breath have improved).

● They have received two negative tests in a row, 24 hours apart.

We recommend that employers consult with legal counsel prior to returning employees with a presumptiveor confirmed COVID-19 diagnosis to work.

Related Resources:

CDC's Frequently Asked Questions

Updated April 3, 2020.

IF AN EMPLOYER FACES A REDUCTION IN DEMAND, CAN IT REDUCE ANEMPLOYEE'S SAL ARY, CUT HOURS OR L AY OFF EMPLOYEES?

As a general rule, employers can reduce the days or hours of work for non-exempt employees as businessdemand dictates. Time not worked by hourly employees generally does not have to be paid. Manyemployers are considering furloughs, layoffs or even reductions in force in light of the economic impact of

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the COVID-19 pandemic. When considering reducing hours or furlough of exempt employees, employersshould analyze the impact of doing so. Exempt employees must meet the salary basis test (in addition tothe duties tests), which requires that they are paid on a salary basis at a rate currently set at not less than$684/week ($35,568 per year), unless specific state laws require a higher salary. Subject to certainexceptions, an exempt employee must receive the full salary for any week in which the employee performsany work without regard to the number of days or hours worked. Exempt employees need not be paid forany workweek in which they perform no work. Where exempt employees are furloughed, employers shouldclearly direct them to perform no work in a given week (such as checking emails) to avoid liability forpayment of wages.

One option to consider is to reduce the salary of exempt employees for an indefinite period of time or asignificant period of time, which is permissible so long as the reduction is not simply an effort to avoid thepurpose of the FLSA, and assuming the reduced salary continues to exceed the minimum threshold to meetthe salary basis test. The DOL has stated that "deductions from salary due to day-to-day or week-to-weekdeterminations of the operating requirements of the business are precisely the circumstances the salarybasis requirement is intended to preclude." However, a reduction in pay for a period of months, due to theneed to reduce expenses through year-end, would likely be permissible.

This solution may be more palatable if the reduced salary comes with a reduced workweek, e.g., 80% hoursfor 80% pay. The DOL has previously indicated that it is permissible to reduce an exempt employee's salaryin connection with a reduction in the workweek, so long as the reduction is permanent or indefinite. Asindicated above, such a reduction cannot be done on a week to week basis, or it will look like an attempt toevade the salary requirement.

If the reduced schedule is voluntary, there is no obligation to pay an exempt employee the full salary, even ifthe reduced schedule is for less than a full workweek. However, the choice must be truly voluntary, andshould be documented in a writing signed by the employee.

Whether a furloughed employee is entitled to unemployment benefits is determine on a state by state basis.Some states have reduced or eliminated waiting periods during the COVID-19 pandemic providing no waitfor unemployment insurance benefits, and may also provide benefits for a reduction (but not a completeloss) of wages in a given week.

Updated April 3, 2020.

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IF AN EMPLOYER TEMPORARILY SHUTS DOWN ITS BUSINESS, DOES THE WARNACT APPLY?

WARN (Worker Adjustment and Retraining Notification) may require an employer to provide a 60-dayadvanced notice to employees before closing a location. WARN is triggered when an employer with 100 ormore employees, (generally not counting those who have worked less than six months in the last 12 monthsand those who work an average of less than 20 hours a week) initiates one of the following events:

● Closes a facility or discontinues an operating unit permanently or temporarily, affecting at least 50employees, not counting part-time workers, at a single site of employment. A plant closing also occurswhen an employer closes an operating unit that has fewer than 50 workers but that closing also involvesthe layoff of enough other workers to make the total number of layoffs 50 or more.

● Lays off 500 or more workers (not counting part-time workers) at a single site of employment during a30-day period; or lays off 50-499 workers (not counting part-time workers), and these layoffs constitute33% of the employer’s total active workforce (not counting part-time workers) at the single site ofemployment.

● Announces a temporary layoff of less than 6 months that meets either of the two criteria above and thendecides to extend the layoff for more than 6 months. If the extension occurs for reasons that were notreasonably foreseeable at the time the layoff was originally announced, notice need only be given whenthe need for the extension becomes known. Any other case is treated as if notice was required for theoriginal layoff.

● Reduces the hours of work for 50 or more workers by 50% or more for each month in any 6-monthperiod. Thus, a plant closing or mass layoff need not be permanent to trigger WARN.

WARN is not triggered when the following various thresholds for coverage are not met:

● If a plant closing or mass layoff results in fewer than 50 people losing their jobs at a single site ofemployment.

● If 50-499 workers lose their jobs and that number is less than 33% of the employer’s total activeworkforce at a single site.

● If a layoff is for 6 months or less.

● If work hours are not reduced 50% in each month of any 6-month period.

There are three exceptions to the full 60-day notice requirement, which may apply to closures related tothe coronavirus outbreak. However, notice must be provided as soon as is practicable even when theseexceptions apply, and the employer must provide a statement of the reason for reducing the noticerequirement in addition to fulfilling other notice information requirements.

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● Faltering company: When, before a plant closing, a company is actively seeking capital or business andreasonably in good faith believes that advance notice would preclude its ability to obtain such capital orbusiness, and this new capital or business would allow the employer to avoid or postpone a shutdown fora reasonable period.

● Unforeseeable business circumstances: When the closing or mass layoff is caused by businesscircumstances that were not reasonably foreseeable at the time that 60-day notice would have beenrequired (i.e., a business circumstance that is caused by some sudden, dramatic and unexpected actionor conditions outside the employer's control, like the unexpected cancellation of a major order).

● Natural disaster: When a plant closing or mass layoff is the direct result of a natural disaster such as aflood, earthquake, drought, storm, tidal wave or similar effects of nature. In this case, notice may begiven after the event.

If a business is temporarily closing due to COVID-19, it would likely be classified as a businesscircumstances that was not reasonably foreseeable at the time that 60-day notice would have been required(i.e., a business circumstance that is caused by some sudden, dramatic, and unexpected action orconditions outside the employer's control, like the unexpected cancellation of a major order).

Note that some states have similar, but notably different, notification laws that require a case-by-caseanalysis.

IF AN EMPLOYEE CONTRACTS COVID-19 AT WORK OR WHILE ON A BUSINESSTRIP, IS THE EMPLOYER LIABLE, AND WHAT SHOULD EMPLOYERS DO TO KEEPEMPLOYEES SAFE AT WORK?

It depends. It is possible that the employer could have liability if an employee catches COVID-19 (or anyother illness) during work travel as it may be considered an "occupational illness." If it is, coverage underthe employer's worker's compensation no-fault insurance would likely be triggered.

The other set of laws that may apply are the OSHA laws, which govern workplace safety and requireemployers to provide a safe and healthful work environment, free of recognized hazards. OSHA has issuedgeneral guidance for employers regarding COVID-19. If an employee contracts COVID-19 while at work oron a business trip, it can be an OSHA reportable injury if a worker is infected as a result of performing theirwork-related duties. However, employers are only responsible for recording cases of COVID-19 if all of thefollowing are met:

● The case is a confirmed case of COVID-19 (see CDC information on persons under investigation andpresumptive positive and laboratory-confirmed cases of COVID-19).

● The case is work-related, as defined by 29 CFR 1904.5.

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● The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medicaltreatment beyond first-aid, days away from work).

Related Resources:

OSHA's Guidance Specific to International Travelers

CDC's Guidance to Travelers

Updated April 3, 2020.

CAN AN EMPLOYEE, WHOSE JOB REQUIRES TRAVEL, REFUSE TO TRAVEL?

If the employee expresses concern for their own health, and does not want to travel, there could potentiallybe retaliation concerns if the employer takes adverse action against the employee.

From an OSHA perspective, if an employee is infected with coronavirus on the job, this can be an OSHAreportable injury. An employer should also be aware of the following:

● Under OSHA, employees are entitled to refuse work if they believe they are in "imminent danger," whichis defined as: any conditions or practices in any place of employment which are such that a danger existswhich could reasonably be expected to cause death or serious physical harm immediately or before theimminence of such danger can be eliminated through the enforcement procedures otherwise providedby this act.

● OSHA also has a General Duty Clause that is essentially a catch-all that employers must provideemployment that is free from recognized hazards that cause or are likely to cause serious injury or death.COVID-19 is not a "recognized hazard" yet, but that standard is fluid and is based, in part, on industrystandard.

● The majority of states have OSHA programs, so an employer should be aware of state-specificcompliance requirements.

BEST PRACTICES

● Develop an infectious disease preparation and response plan to begin establishing workplace controls.Communicate a plan of action with employees that emphasizes employees' health and safety as the toppriority. Encourage employees to be open and ask questions.

● Provide extra tissues, sanitizer and wipes at frequently used workspaces and encourage employees toexercise good hygiene practices.

● Consider designating a point person or group in charge of planning for coronavirus developments. Thisindividual or group should be tasked with items such as monitoring CDC, State Department and state

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health department guidance daily, implementing and communicating new policies to address thepandemic, providing employees periodic updates; and considering any need for cross-trainingemployees in the event of increases absences.

● Require employees to stay at home, or go home if they are at work, if they feel sick.

● Avoid close contact with anyone who is sick; consider limiting or eliminate handshaking; considerincreasing your use of telephone and video conferencing for communications.

● Encourage employees to practice good hygiene, such as:

● Wash hands often with soap and water for at least 20 seconds. If soap and water are not available, use ahand sanitizer that contains at least 60% alcohol.

● Avoiding contact to eyes, nose and mouth with unwashed hands.

● Cover coughs and sneezes with a tissue, throw tissue in the trash, and then wash or use sanitizer onyour hands.

● Clean and disinfect frequently touched objects and surfaces.

● Practice other good health habits: get plenty of sleep, be physically active, manage stress, drink plentyof fluids, and eat nutritious food.

View more best practices from the CDC.

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