COVID-19 Patchwork Awaits Employers Seeking To Reopen

By Braden Campbell
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Law360 (May 15, 2020, 5:17 PM EDT) -- Employers looking to resume operations are struggling to come to grips with an array of state and city standards for health screenings, worker protection, sick leave and other facets of doing business amid the pandemic.

This rapidly changing web is tough enough for employers in just one state to follow and digest, but for those with cross-border operations, trying to navigate their new obligations is proving to be an ordeal, say attorneys.

"Our firm put together a return-to-work guide just to support our clients who are beginning to resume operations," said Amy Pocklington, a shareholder in Ogletree Deakins Nash Smoak & Stewart PC's Richmond office. "That thing is over 100 pages long."

What has become a disparate state and local response to the pandemic stems, in part, from the relatively hands-off approach of the federal government from the outset of the crisis. Congress and the Trump administration have, to date, provided relief to struggling workers and businesses, extended paid virus leave to certain workers, and issued guidelines for workplace protections. But otherwise, they've left the plan for day-to-day operations up to state and local leaders, who have taken varying angles of attack.

And many of the variations have significant repercussions for businesses. For example, Texas Gov. Greg Abbott recently announced guidance from the Texas Workforce Commission that lets certain "high-risk" workers remain on unemployment if they refuse to return to work.

Refusing an offer of work usually disqualifies a recipient from continuing to collect benefits, but the Lone Star State is letting workers decline callbacks if they're 65 or older, live with someone who is, or if they meet certain other qualifying criteria. This approach conflicts directly with policies in Iowa and Georgia, where leaders have said workers lose benefits if they refuse to work, regardless of their reasons.

Variations in unemployment rules are nothing new for employers, as the federal government has long delegated authority over jobless benefits to the states. But state and local governments have also taken different approaches on novel issues for employers looking to reopen, notably health screenings.

The U.S. Equal Employment Opportunity Commission has said federal law gives employers wide latitude to screen workers for the virus, but many states have imposed specific testing regimens. This includes Pennsylvania, which is making employers take workers' temperatures for two weeks if a worker contracts the novel coronavirus.

"That's different than some other places that are only recommending [temperature screening], and there are very few places that are requiring it," said Melissa Peters, a Littler Mendelson PC attorney who advises California employers on workplace safety. Other states are making employers conduct "symptom screening," in which workers self-report symptoms or employers screen them when they get to work, Peters said.

Employers may also be subject to different safety rules depending on where they operate. The U.S. Department of Labor's Occupational Safety and Health Administration has resisted calls from workers' advocates to adopt mandatory infectious disease protections in favor of urging businesses to follow the Centers for Disease Control and Prevention's workplace safety recommendations.

But some state safety offices have higher standards, such as the California Division of Occupational Safety and Health, which has an existing rule requiring health care companies, police and other employers to adopt plans for limiting workers' exposure to airborne diseases and implement certain controls, such as regular hand-washing and surface cleaning.

And some states have made employers provide sick leave above and beyond the federal Families First Coronavirus Response Act. That law, passed in March, only requires employers to pay up in certain circumstances and doesn't apply to businesses with more than 500 workers, while state and local leave laws may apply to larger businesses or kick in under different circumstances.

These variations mean businesses may face different sets of rules depending on which state — or in some cases, municipality — they're operating in.

Peters said large, multistate clients are struggling to get a grip on their obligations in California in particular, where some municipalities have set their own social distancing measures or health and safety rules. And while smaller employers don't have to survey the full landscape, they may not have the resources to keep up with changes where they do operate.

"They're trying to comply, but it's hard," Peters said. "It's really hard." 

Many of Pocklington's clients "are trying to go to a more standard approach," she said. In general, that means tailoring companywide rules to the strictest jurisdiction in which they operate. 

Retail clients are struggling with occupancy rules, which can vary widely from state to state, she said. In Virginia, where Pocklington practices, Gov. Ralph Northam recently relaxed a 10-person occupancy limit and allowed businesses to operate at half capacity. Other states may have different limits, Pocklington said. 

"I've seen some retailers just go with the most conservative approach there and say 'we're only going to allow X amount of people in our store at any time,'" Pocklington said. Similarly, employers that have to conduct temperature checks in a certain jurisdiction may just standardize screenings companywide, she said.

Brach Eichler LLC employment attorney Anthony Rainone, who practices in New York and New Jersey, said his clients aren't contending with a web of local rules. Still, he said he's recommending they form teams to handle various facets of the reopening process.

One group should make a plan for using money from the federal Paycheck Protection Program, one should devise a workplace safety plan, and another should handle leave requests as they come in, he said.

"You've got to task people to be responsible to make these judgments," he said.

Yet as daunting as it may be to track and follow this web of standards, most clients are taking the challenge in stride, Pocklington said. She described herself as "constantly shocked" by employers' willingness to adapt to a difficult situation.

"People are just gearing up and trying to do everything they can to make sure they're ready and to keep their employees safe and communities safe, and they're coming up with a lot of creative ways to do it," Pocklington said. "But it's a lot."

--Editing by Philip Shea and Haylee Pearl.

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