Safe Searchs

The Occupational Safety and Health Administration (OSHA) has issued a final rule revising its procedures for accessing employee medical records, with specific requirements for safeguarding electronic medical records that are more consistent with current medical recordkeeping practices. The revisions also shift authority to manage the procedures from the OSHA Assistant Secretary to an OSHA Medical Records Officer (MRO), which OSHA views as a more “efficient” process. As a result of these revisions, employers may learn at an earlier point in the inspection process whether OSHA personnel will be authorized to review medical records and should have greater clarity about the protocols OSHA will follow when reviewing the information. The final rule was issued on July 30, it modifies 29 CFR § 1913 and is available here.

Background on OSHA’s Procedure for Medical Records Access

To carry out its statutory obligations, OSHA needs to review employee medical records from time to time. For instance, OSHA may review medical records to determine whether employers are in compliance with existing OSHA standards and regulations. OSHA may also review medical records to check whether employer voluntary safety and health programs are effective. Employee medical information may also be reviewed during an OSHA rulemaking to develop or revise OSHA standards.

In 1980, OSHA promulgated Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records in an effort to preclude abuse of personally identifiable medical information. Under the 1980 rule, OSHA personnel were required to obtain a written access order to request and review medical information from employers. The order needed to include the statutory purpose for which access was sought, a general description of the kind of employee medical information that would be examined, and why there was a need to examine personally identifiable information. Additional explanation was required if medical information was to be examined on-site, and what type of information would be copied and removed off-site. In addition, the order needed to include the contact information for the Principle Investigator and the period of time during which employee medical information would be retained.

The 1980 rule also set forth several procedures for OSHA personnel to follow when accessing and reviewing personally identifiable medical information. For example, it required that all hard copy records that contained personally identifiable employee medical information be kept separate from other agency files, and, when not in use, stored in a locked cabinet or vault. OSHA personnel could photocopy such information, but duplication needed to be kept to the minimum extent necessary to accomplish the purpose for which the information was obtained. Protective means, including hand-delivery and U.S. mail, were required to be used for any inter-agency transfers. Personnel could not use inter-office mailing channels.

The procedural safeguards in the 1980 rule were developed at a time when employee medical records were maintained in hard copies, and until now, had not been updated to correspond with changes in recordkeeping practices, such as electronic medical records. According to the preamble of the revised rule, OSHA determined that it was necessary to make revisions in order to enhance employee privacy, clarify certain provisions, and to address the access and safeguarding of personally identifiable employee medical information maintained in electronic form.

Key Revisions

While keeping much of the 1980 rule in effect, the revised rule updates four significant aspects of the original rule.

First, the revised rule replaces the 1980 rule’s term “written access order” with the term “medical access order” or “MAO,” which is the term that is more commonly used by OSHA when requesting and accessing medical records. In conjunction with this revision, the revised rule also expressly clarifies that MAOs are not considered administrative subpoenas; rather, an MAO would need to be accompanied by an administrative subpoena, consistent with OSHA’s longstanding practice, to compel the production of medical records.

Second, the revised rule transfers responsibilities from the Assistant Secretary to the OSHA Medical Records Officer (MRO). The MRO is tasked with administering and implementing the rule: specifically, authorizing and monitoring OSHA access to personally identifiable medical information pursuant to an MAO, and inter-agency and public disclosure of personally identifiable medical information. The MRO is also authorized to issue written directives allowing OSHA personnel to review information in the absence of obtaining an MAO.

Third, the revised rule introduces measures to protect electronically stored medical records from unauthorized access at 29 CFR § 1913.10(n). It establishes new procedures for designating specific security roles and responsibilities for OSHA officials. It also creates measures to implement technology safeguards to protect against electronic breaches. The revision remedies out-dated provisions of the 1980 rule, which was issued when electronic medical records did not exist.

Fourth, given the existing security procedures in 29 CFR § 1913.10(i) and the new safeguards to protect private medical information in electronic medical records, the revised rule eliminates the requirement to remove direct personal identifiers from medical records that were formerly set forth in 29 CFR § 1913.10(g).

Discontinuing Employment

(i) Dismissal

As previously discussed, the employment-at-will doctrine allows an employer to terminate an employment relationship for any lawful reason, without cause or notice. However, the doctrine may not apply when, for example, the employee has a specified term of employment, or the employer’s policy or an employment contract provides for discharge for specified reasons, sets forth a progressive disciplinary policy, or contains a notice period requirement.

There is no statutory right to severance or separation pay upon termination of employment, but an employer may agree to provide severance in individual contracts or via a severance policy or plan.

Typically, CBA’s contain just cause provisions or other contract clauses that limit the reasons why, or the process by which, an employer may dismiss an employee. Most CBAs have a dispute mechanism often referred to as the grievance and arbitration, and the parties must work within that contractual framework to resolve disputes regarding employment actions, including terminations.

(ii) Redundancies

The Federal Worker Adjustment and Retraining Notification (WARN) Act require that employers provide notice for certain group lay-offs and plant closures. Specifically, employers with 100 or more full-time employees must provide 60 days’ notice to affected employees and certain State and Local government agencies when there is a qualifying mass lay-off or plant closure, as those terms are defined by the statute. Some States have mini WARN laws that cover additional events or contain more stringent notice requirements. For instance, New Jersey’s WARN Act now requires employers to pay severance.

If an employer provides severance pay in connection with a reduction in force (pursuant to a contract or otherwise), it is likely to require the employee to sign a release of claims in exchange for severance benefits. If an employee is aged 40 or older, employers must follow the review and revocation periods for releases, as set forth in the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act.

In a unionised workplace, the CBA may dictate the notice, actions or bargaining that must take place before a group lay-off, plant or site closure, or reduction in force may occur.

Six months into the pandemic, with many employees still working from home, teleworking is far more common than ever, some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond). Today’s situation is far different from five years ago when the EEOC lost in its attempt at the Sixth Circuit to expand telecommuting as a reasonable accommodation under the ADA.

Nowadays, employers are preparing for a potential tidal wave of reasonable accommodation requests for telework after they resume onsite work. Employees may wonder whether the employer has to continue the telework arrangement after the worksite reopens, and other employees may seek to renew previously denied, pre COVID-19 telework reasonable accommodation requests. Finally, the EEOC has stepped in to address this issue in its September 8, 2020 updates to its “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

The EEOC’s answers provide useful guidance for employers. As a baseline, the EEOC notes that any across the board treatment like a presumption is inconsistent with the EEOC’s oft-repeated maxim that reasonable accommodation inquiries must be addressed on an individual basis. Instead, “any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation” and then proceed through the Interactive process accordingly regarding a potential reasonable accommodation.

The EEOC also reiterates another fundamental perception that “the ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.” Relying on the percept, the EEOC makes a common-sense determination that employee advocates may tend to ignore or de-emphasize: “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions.” In other words, temporarily making the best out of necessity and compassion does not tie an employer to forever deeming this a successful means for fulfilling all of the long-term essential functions.

Nevertheless, the EEOC recognizes a scenario under which the pandemic telework experience of an employee could be relevant to telework as a reasonable accommodation post-pandemic. If an employee renews a pre-COVID-19 request for teleworking as a reasonable accommodation, the EEOC suggests that this prior teleworking experience could be relevant in considering the renewed request. The pandemic telework could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.

Another consideration for employers is how the November elections may impact the EEOC moving forward. EEOC appointees under a new administration might be more inclined to resume the efforts of Obama-era appointees to expand the circumstances under which telework is required as a reasonable accommodation.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance, offering additional instruction regarding the potential clash between teleworking accommodation requests and office reopening procedures. The updated guidance also addresses the EEOC’s position on COVID-19 screening and testing of employees. The new guidance comes in the form of additional questions and answers in the EEOC’s. “What you should know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws” document.

Teleworking Requests

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees who need them to perform their job, unless the requested accommodation poses an undue hardship. As businesses begin reopening after months of some employees working from home, many employers will encounter employee requests to continue telecommuting as an accommodation.

The EEOC’s guidance explains that employers need not “automatically” grant telework accommodations to every employee who requests them. As an initial matter, if no disability-related limitation necessitates telework, the employee is not entitled to the accommodation. An employer has the right to know what the disability-related limitation is and how it impacts the employee’s ability to perform his or her job in the workplace. Additionally, employers are not required to provide an employee’s preferred accommodation. If a limitation can be addressed with an accommodation other than telework, an employer may provide it instead.

Further, employers are never required to eliminate an essential function of a job to grant accommodation to an employee. An employer’s decision to temporarily excuse an essential function of a job to keep its operations running as normal as possible during COVID-19 does not mean that the change is permanent, that it does not pose an undue hardship, or that telework is always a feasible accommodation. However, the EEOC explains this is a fact-specific inquiry, so employers should continue evaluating requests on a case-by-case basis.

As for employees who were denied a telework accommodation prior to the pandemic, employers could treat their work from home during COVID-19 as a trial period in evaluating renewed requests for telework accommodations when they return to the workplace. Employers should consider an employee’s success – or failure – with telework over the past few months in evaluating renewed requests.

In many areas, employees continue to telework. For accommodation requests that arise in the meantime, the EEOC guidance states that COVID-19 related disruptions in business operations could result in an excusable delay to the interactive process because of the unexpected and increased requests for accommodations. Additionally, accommodations that existed pre-pandemic may or may not be reasonable when employees are teleworking. For example, an employee might already have at home the modified tools needed to work effectively. On the other hand, a previously feasible reasonable accommodation may now pose an undue hardship to the employer.

COVID-19 Screening and Testing

In addition to telework accommodations, the EEOC guidance addresses COVID-19 screening and testing. Specifically, it provides that employers may ask all employees physically entering the workplace if they have COVID-19 symptoms. However, an employer may not ask employees whether they have family members with COVID-19 symptoms, as this could violate the Genetic Information Non-discrimination Act (GINA). Instead, employers may ask employees if they have had any close contact with individuals with COVID-19 symptoms, including household members.

Days before the upcoming deadline, ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 60 days (instead of just 30 days), until November 19, 2020, due to continued precautions related to the COVID-19 pandemic.

According to the original guidelines for virtual verification, eligible employers may continue to inspect section 2 documents without an actual in-person physical inspection (e.g., over a video link, fax, or email). As before, the policy applies only to employers and workplaces that are in fact operating remotely. The latest announcement States that if any employees are physically present at the worksite, an in-person physical inspection of the I-9 documentation must occur. In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. How and whether ICE will be reasonable is yet to be seen. Rather than using virtual inspection, employers still have the option of using agents or authorized representatives to review I-9 documentation at remote locations.

The final provisions of Oregon’s Workplace Fairness Act (OWFA) go into effect on October 1, 2020 – less than a month away. All employers doing business in Oregon will need to make changes to their harassment policies and settlement, severance, and separation agreements to be compliant with the OWFA. Below are the highlights of the law’s sweeping changes:

Non-Discrimination and Non-Harassment Policies

The OWFA mandates that employers adopt a written anti-discrimination and anti-harassment policy containing procedures and practices for the reduction and prevention of discrimination under the Oregon’s protected categories, which include race, color, religion, sex, sexual orientation, national origin, marital status, age, expunged juvenile record, performance of duty in a uniformed service, or physical or mental disability. At a minimum, the policy must:

·         Describe the process to report prohibited conduct, including suspected discrimination harassment or sexual assault;

·         Identified an individual and an alternate to who such reports can be made (for example the Store Manager or HR Director);

·         Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;

·         State that an employer may not require or coerce an employee to enter into a nondisclosure, nondisparagement or no-rehire clauses, but has seven days to revoke the agreement; and

·         Includes a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.

Employers must also ensure that all employees have access to the final policy, as well as provide a copy to all new hires and at the time an employee reports information regarding discrimination, harassment, or sexual assault.

Enforcement of Nondisclosure, Nondisparagement, and No-Rehire Provisions in Employment, Settlement, Separation, and Severance Agreements

Employers cannot require an employee to enter into any agreement that contains a nondisclosure, nondisparagement provision if it has the purpose or effect of preventing the employee from disclosing or discussing conduct constituting discrimination, harassment, or sexual assault.

However, an employer may enter may enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision if an employee claiming to be aggrieved by discrimination, harassment, or sexual assault requests to enter into an agreement with such provisions, so long as it allows at least seven days to revoke the agreement, and it does not become effective until after the revocation period has expired.

Employers may void severance agreements for manager who violate discrimination or harassment policies if those violations were a substantial contributing factor in causing the separation from employment.

Statute of Limitations

Most employers reimburse their employees for money spent on meals, hotels, and other expenses during work trips as business expenses, but few have given thought to reimburse employees for employee costs incurred at home, including for internet, electricity, printer, ink, etc., because those have traditionally been considered personal expenses. Employers who are requiring their workforce to remain remote in response to the COVID-19 pandemic should revisit their business expense policies if they have not so already.

Under the Fair Labor Standard Act (FLSA), employees are entitled to reimbursement of expenses paid for the benefit of their employer if that expense would bring an employee’s earnings below the federal minimum wage. Many states, such as California, Illinois, Pennsylvania, Montana, Iowa, and New Hampshire, impose other expense reimbursement requirements on employers as well. For example, California requires that employees be reimbursed for all “necessary expenditures or losses incurred by the employee in direct consequence or discharge of his or her duties.”

Now that many workforces are fully remote, expenses that could previously be considered “personal” in nature may now be considered business expenses, at least in part to the extent that the employer derives benefits from those expenses. Depending on the circumstances, this may include office supply expenses (e.g., pencils, paper, ink, printers, etc.), utilities (e.g., internet, phone), or any other expenses required by the employer during a remote work period.

To the extent that any covered expenses are reimbursed pursuant to an “ accountable plan” (as defined by the IRS), the amounts are not treated as wages and are not subject to income, social security, Medicare, or unemployment taxes. To be an accountable plan, an employer’s reimbursement arrangement must comply with the following: (1) the expenses must have a business connection, (2) the expenses must be substantiated within a reasonable period, and (3) any amounts reimbursed in excess of substantiated expenses must be returned to the employer within a reasonable period.

A federal district court in New York has struck down a significant portion of the recently promulgated Final Rule issued by the U.S. Department of Labor (DOL) regarding the standard for establishing joint-employer liability under the Fair Labor Standard Act (FLSA). State of New York v.Scalia, 2020 U.S. Dist. LEXIS 163498 (S.D.N.Y Sept 8, 2020). As a result, at least for now in the Southern District of New York, the joint-employer analysis will continue to be guided by the varying standards that have developed among the federal courts over the years.

Background

Since 1939, regulations interpreting the FLSA have recognized that two or more “employers” can be jointly and severally liable for a single employee’s hours worked under the Act. In April 2019, the DOL issued a Notice of Proposed Rulemaking (NPRM) to update its interpretation of the standard for establishing joint-employer liability under the FLSA, Following a review and comment period, in January 2020, the DOL announced a Final Rule became effective in March 2020.

Final Rule

Under the Final Rule, the DOL stated that the proper focus is on “the potential joint employer’s exercise of control over the terms and conditions of the employee’s work.”

Derived from the decision of the U.S. Court of Appeals for the Ninth Circuit in Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir,1983), the new Final Rule adopted a four-factor balancing test accessing whether the purported joint employer:

·         Hires or fires the employees;

·         Supervises and controls the employee’s work schedules or condition of employment;

·         Determines the employee’s rate and method of payment; and

·         Maintains the employee’s employment records.

Moreover, the DOL concluded that an entity may qualify as a joint employer only if it actually “[takes action] with respect to the employee’s terms and conditions of employment,” rather than merely possessing the “theoretical ability” to do so.

The Suit

In February 2020, attorneys general on behalf of 18 states filed suit seeking to have the Final Rule vacated. These plaintiffs claimed that the Final Rule was promulgated in violation of the Administrative Procedure Act (APA), improperly narrowed who is considered a joint employer, and will harm their states in multiple ways, including by lowering wages, decreasing compliance with worker protection laws; reducing their tax revenue, and increasing the administrative and enforcement costs their comparable state law equivalents to the FLSA.

Court’s Decision

The New York district court agreed with the plaintiffs, granting summary judgment in their favor and abrogating the more controversial portion of the Final Rule.

In the Final Rule, the DOL recognized that joint employment may exist in two basic organizational formats: “horizontal” joint employment, where the employee has employment relationships with two or more employers and the employers are sufficiently associated or related with respect to the employee such that they jointly employ the employee; and “vertical” joint employment, where the employee has an employment relationship with one employer (such as a staffing agency or subcontractor) that provides work for a second employer and, as a practical reality, the employee is employed by that second employer as well.

The court took no issue with the Final Rule as it pertains to horizontal joint employer liability, but concluded that the Final Rule’s interpretation of vertical joint employer liability conflicts with the broad definitions of “employer,” “employee,” and “employ” set forth in the FLSA. Those definitions must be construed in tandem with each other, the court held, so in establishing the standard for (vertical) joint employer liability, the Final Rule’s reliance solely on the Act’s definition of “employer” was improper. In addition, contrary to the Final Rule, there is no distinction between whether an entity is an “employer” and whether it is a “joint employer,” the court concluded; an entity is an employer or it is not. In these respects, the Final Rule contradicts the text of the FLSA. The DOLs own previous interpretations, and longstanding case-law, without adequately explaining or justifying why.

Moreover, the court agreed that the plaintiffs had sufficiently demonstrated that the Final Rule will increase the enforcement costs of their analogous state-based laws. As the states with broader standards for joint employer liability will continue to enforce those diverging standards and will have to increase the number of investigators and person-hours necessary to do so. Even those states whose wage and hour laws generally follow the FLSA will have to expand additional time and money on re-training employees responsible for enforcing and administering the DOL’s new interpretation of joint employer liability.

The Department of Labor has issued revisions and clarifications to its FFCRA Temporary Rule in response to the New York federal court’s decision to vacate some of the provisions of the earlier version of the Rule.

Summary of Revisions:

In its revised rule and clarifications, the DOL:

·         Reaffirms that the emergency paid sick leave and expanded family and medical leave under the FFCRA may be taken only if the employee has work from which to take leave. (The temporary rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave).

·         Reaffirms that an employee must obtain the employer’s approval to take emergency paid sick leave or expanded family and medical leave intermittently, but explains the difference between intermittent and additional requests for leave.

·         Revises the definition of “health care provider” to mean employees who are health care providers under 29 CFR 825.102 and 825.125 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

·         Revises § 826.100 to clarify that the information the employee must give the employer to support the need for leave should be provided to the employer as soon as practicable.

·         Revises § 826.90 to clarify that notice of expanded family and medical leave must be provided as soon as practicable.

Leave is only available if a qualifying reason was produce but for the cause of the employee’s inability to work.

The DOL took issue with the reasoning of the district court and reaffirmed that all leave under the FFCRA is only available if the employer has work available for the employee. In other words, an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is but-for cause of his or her inability to work. The DOL explained that “if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps of the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but -for cause of the employee’s inability to work.” In support of its position, the Department stated that it “sees no textual basis or other persuasive reason to deviate from the standard meanings” of the terms “because” and “due to” which were used in the statute. It further stated that the term “leave” is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.”

DOL Clarifies when leave is intermittent and must be approved by the employer.

While the Department reaffirmed that intermittent leave could only be taken when the approval of the employer, it also explained the difference between intermittent leave and consecutive requests for leave. According to the DOL, “the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particulars days as determined and directed by the school, not the employee.” Each day of school closure constitutes a separate reason for the FFCRA leave that ends when the school opens again for the particular student. “The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).” However, if the school is closed for some period and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule, this would constitute a request for intermittent leave that would require his or her employer’s agreement.

The EEOC updated its guidance this week

 The Equal Employment Opportunity Commission this week updated its Q&A guidance on coronavirus and the federal anti-discrimination laws – primarily, the Americans with Disabilities Act. A few of the updates are painfully obvious, but most will very helpful to employers.

Here is a summary. The parenthetical references are to the actual Question in the guidance.

Stuff employers can and cannot ask employees

Employers are allowed to test employees for COVID-19 (but not COVID-19 antibodies). Employers are responsible for keeping up with the latest guidance from the Centers for Disease Control and Prevention and following that guidance. This also means periodically checking the CDC website and the website for the Food and Drug Administration for updates. (A.6)

It is also fine for employers to ask employees physically entering the workplace about symptoms of COVID-19 and whether they have been tested, and to not allow them in the workplace if the answers are not satisfactory. However, employers cannot ask teleworking employees about COVID testing or symptoms. (A.8)

If an employee wants to single out one employee (or a few employees) to ask these questions, it has to have a “reasonable belief based on objective evidence” that the employee has COVID. This would be fine if the employee had symptoms of COVID, or if – for whatever reason – relevant CDC guidance or public health authorities said the employee should be treated differently from co-workers. (A.9)

The employer cannot ask the employee about whether the employee’s family members have coronavirus or symptoms because that would violate the Genetic Information Non-discrimination Act. Plus, it is too narrow. But the employer can ask generally whether the employee has been exposed to “anyone” who has COVID or symptoms of it. (A.10)

If an employee refuses to be tested or to answer questions, the employer does not have to allow the employee to enter the workplace. However, the EEOC encourages employers to first ask why the employee will not comply and to try to explain the rationale for the testing or questions and reassure the employee that the information will be kept confidential. (A.11)

More things an employer can legally do:

·         Ask onsite employees who say they are not feeling well about the details of their symptoms (as necessary to determine whether they might have COVID).

·         Ask employees why they are absent from work.

·         Ask employees returning from travel where they went, to determine whether they visited a COVID “hot spot.”

(A.12, A.13, A.14)

Maintaining Confidentiality

If an employer learns that an employee has COVID or COVID symptoms, it can, of course, notify ‘appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.’ However, they should not disclose the name of the employee unless they absolutely have to, and anyone who gets the name should be warned to keep it confidential.

The employer should not provide more than a generic description to other employees in the location or department of the employee who is sick. The EEOC acknowledges that in a small workplace, even if the employee is not identified by name, everybody may figure out who it is. But “employers in that situation are still prohibited from confirming or revealing the employee’s identity.” (B.5)

If an employee learns that co-worker is having COVID symptoms, it will not violate the law for the employee to disclose that information to the employer. But, or of course, the employer will have to be very careful about how to handle the information once received. (B.6)

More things an employer can legally do:

·         Tell employees that an employee with COVID is working remotely, (just leave out the “with COVID” part)

·         If management or Human Resources is working remotely and it is not possible to store employee medical information as required by the ADA, it is OK to keep the employee medical information at home. But the teleworking managers should do whatever they can to “safeguard this information,” whether it is on paper or in electronic form, “to the greatest extent possible” until it can be properly stored.

(B.7)

FMCSA distributed the notice below regarding the revised Federal Drug Testing Custody and Control Form last week.

Please note that the revised CCF is not widely available yet and that the testing laboratories have been asked to consider using up their stock/exhausting their stock of the 2017 version of the CCF prior to distributing the revised CCF.

DOT ANNOUNCES NEW CUSTODY AND CONTROL FORM

New CCF Includes Field for Driver CDL Information

On August 30, 2020, the U.S. Department of Transportation announced that the revised Federal Drug Testing and Custody and Control Form (CCF) is approved by the Office of Management Budget (OMB). While the ‘old’ CCF can be used until August 30, 2021, the new CCF is approved for use as of September 1, 2020. You can download the revised version of the new CCF document here.

One of the updates in the new CCF is the addition of “CDL State and no.” to the line that captures donor identification information. Including a driver’s commercial driver’s license (CDL) number and state of issuance here for all the FMCSA regulated tests will greatly assist medical review officers (MROs) in reporting drug and alcohol violations in the clearinghouse.

How will I know the difference between the old CCF and the revised CCF?

The old CCF is the one that has been used under the DOT-regulated program since 2017.

Most of the changes adopted in the revised CCF were made to accommodate the use of oral fluid specimens for the Federal drug-testing program. Oral fluid drug testing is not authorized in the DOTs current drug testing program.

In addition to the changes regarding oral fluids, the revised CCF also includes the following changes:

·         Copies 1-5, Step 1: Added “CDL State and No.” to donor identification (FMCSA only);

·         Copies 1-5, Step 1: Added “other” (i.e., e-mail) to Collector Contact Info;

·         Copy 1, Step 5a: Removed analyte names and checkboxes; repositioned results and checkboxes, and added a line for the certifying scientist to record the positive analyte(s) and concentration(s) if a positive result is recorded;

·         Copies 2-5, Step 5: Added a line for the donor e-mail address;

·         Copy 5: Removed instructions for completing the CCF from the back of the form. Instructions for completing the CCF are posted on the SAMHSA: https://www.samhsa.gov/workplace/drug-testing and ODAPC https://www.transportation.gov/odapc/documents websites.

 When can I begin using the revised CCF?

DOT regulated employers and their service agents (collectors, laboratories, Medical Review Officers (MRO)) are authorized to use the revised CCF beginning September 1, 2020. To avoid confusion regarding whether oral fluid testing is authorized in the DOT program, and to allow existing supplies of old CCF’s to be depleted, we recommend as a best practice that laboratories not mail any of the revised CCFs to DOT regulated clients or their service agents until after June 1, 2021 (or until supplies of the old CCFs have been depleted).

As a collector, can I still use the old CCF after September 1, 2020?

·         Yes. OMB authorized, and you may choose to use, the old CCF until August 30, 2021. When using the old CCF between September 1, 2020, and August 30, 2021, a memorandum for the record (MFR) is not required. If you use the old CCF after August 30, 2021, you must complete an MFR per 49 CFR § 40.205(b)(2).

·         Beginning September 1, 2020, you may use the revised CCF. However, after August 30, 2021, you are required to use the revised CCF.

·         We recommend that you monitor your existing supply of old CCFs and coordinate the delivery of the revised CCF with the testing laboratory.

If I use the old CCF between September 1, 2020, and August 30, 2021, do I need to do anything differently?

No. The new information required to be provided on the revised CCF (i.e., collector and donor e-mail addresses) may be but is not required to be, included when using the old CCF.

ODAPC Guidance Document #: ODAPC DRG05

The U.S. Department of Health and Human Services published a Notice of Proposed Rulemaking in the Federal Register entitled Mandatory Guidelines for Federal Workplace Drug Testing Programs at Vol. 85, No. 176. This proposed rulemaking would permit hair testing for Federal program testing after a final rule is published. Please note that this proposed rulemaking does not relate directly to the Department of Transportation testing at this time because adding hair to the DOT permitted specimen list requires a separate rulemaking initiative. 

https://www.govinfo.gov/content/pkg/FR-2020-09-10/pdf/2020-16432.pdf.

Please also note that this is a proposed rulemaking and it will take some time for this rulemaking to go through a public comment period and become finalized. After, and when/if, the rule is finalized as revised or as published today, the Department of Transportation would need to do its separate rulemaking for hair to be permitted for DOT Agency testing (FAA, FTA, FRA, FMCSA, PHMSA, and Cost Guard). So, this process is in the very preliminary stages.

The Executive Summary and Summary from the Proposed Rule Follows:

Executive Summary

The notice of proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs using Hair (HMG) will allow federal executive branch agencies to collect and test a hair specimen as part of their drug testing programs with the limitation that hair specimens be used for pre-employment (i.e., for applicants applying for federal testing designated positions) and random testing. A federal agency choosing to test hair specimen must authorize collection and testing of at least one other specimen type (e.g., urine and oral fluid) that is authorized under the Mandatory Guidelines for Federal Workplace Drug Testing Programs, and provide procedures whereby the alternate specimen is used in the event that a donor is unable to provide a sufficient amount of hair for faith-based or medical reasons, or due to an insufficient amount or length of hair.

The proposed HMG require the collection of an alternate authorized drug testing specimen in addition to the hair specimen, either simultaneously (i.e., at the same collection event) or when directed by the Medical Review Officer (MRO) after review and verification of laboratory-reported results for the hair specimen. This alternate specimen would be tested and reported in place of a donor’s positive hair specimen only in certain circumstances, as described below: These proposed HMG establish standards and technical requirements for hair collection and collection materials, initial hair drug test analytes and methods, confirmatory hair drug test analytes and methods, processes for review by an MRO, standards for certification of laboratories engaged in hair drug testing for federal agencies’ drug-free workplace programs, and requirements for federal agency actions that are covered by these Guidelines. The HMG provides flexibility for federal agency workplace drug testing programs to address testing needs by allowing hair as an alternative specimen type. The Department of Health and Human Services, pursuant to the Department’s authority under Section 503 of Public Law 100–71, 5 U.S.C. Section 7301, and Executive Order No. 12564, establishes the scientific and technical guidelines for federal workplace drug testing programs and establishes standards for certification of laboratories engaged in drug testing for federal agencies.

Summary of the Major Provisions of the Proposed HMG

Almost all California cannabis companies will have to offer a retirement plan of sorts (for ease of reference, the author refers to a 401(k) plan, but there are other types of plans). Cal.Code Regs. Tit. 10 § 10001. In fact, the deadline for cannabis companies with more than 100 employees is September 30, 2020.

In California, cannabis companies with more than 100 employees are mandated to have some type of retirement plan in place by September 30, 2020.

For cannabis employers with more than 50 employees, the deadline is June 30, 2021; for cannabis employers with five or more employees, June 30, 2022.

To help its employers comply with this mandate, the state of California has its CalSavers program. The program is a retirement vehicle, allowing employees – through their employer – automatically to direct a portion of their pay into investments that State Street Global Advisors have pre-selected. Under this individual retirement account (IRA) program, a cannabis company will not be able to match employee contributions or give any profit sharing contribution. As for employees, CalSavers will limit the contribution to $6,000 (in 2020), which is already what an employee contributing to an IRA (without the California mandate on employers).

Aren’t Cannabis Companies Exempt from California’s Mandatory Retirement Law?

Nope, a quick “control F” search for the word “cannabis” or “marijuana” in the text of the law will show clearly that such companies are not exempt from having to facilitate the Calsavers IRA program (else, they must offer a retirement plan).

Employer Eligibility

California employers are required by state law to facilitate CalSavers if they do not offer an employer-sponsored retirement plan and have five or more employees. All eligible employers can register at any time prior to their registration deadline.

More than 100 employees – September 30, 2020 (extended from June 30, 2020)

More than 50 employees – June 30, 2021

5 or more employees – June 30, 2022

What happens if Cannabis Companies Don’t Register with CalSavers?

Penalties for non-compliance by a cannabis company can be up to $750 per eligible employee - $250 per eligible employee upon the first official penalty notice from the State of California - and an additional $500 per eligible employee for continued noncompliance 90 days after the first penalty notice.

To avoid the penalty, however, and to comply with the California mandate for retirement plans, a cannabis company that can adopt a 401(k) plan prior to the relevant deadline. In that way, the cannabis avoids having to register with the CalSavers IRA program to enrol their workers. As you can see with the above deadlines, large cannabis companies – those with more than 100 employees – have just until the end of this month!

Is a 401(k) Plan a good alternative to CalSavers?

Is a 401(K) plan a good alternative to the CalSavers IRA for a cannabis company? It is. While there are other retirement plans (e.g., 401(a) and 403(b) plans, simplified employer plans, SIMPLE IRA’s, etc), the very common 401(k) plan is a good retirement plan choice for cannabis companies trying to comply with California’s mandate and to offer one that most employees readily recognize. A 401(k) plan allows a cannabis company input in designing the terms of the plan (eligibility, age of participating, length of minimum service, vesting, employer contributions, etc.). For example, a cannabis company might want to match employee contributions.

Does the new California regarding mandatory retirement programs apply to cannabis companies?

Yes, it does.

As another example, maybe the cannabis company might want to allow profit sharing. Or, the cannabis company might want to help select the investments into which its employees will put their money. Consequently, a 401(K) plan might be more suitable for a cannabis company that wants to have control in the design of its ultimate retirement plan.

Can Cannabis Companies participate in a 401(k) Plan?

While cannabis remains illegal under the Federal law of the Controlled Substances Act, under the federal laws of the Internal Revenue Code (through which the Department of Treasury enforces its federal laws) and the Employee Retirement Income Security Act (“ERISA,” through which the Department of Labor enforces its federal laws), cannabis companies can sponsor and/or participate 401(k) plans. For an exploration through those federal laws and how cannabis companies can have 401(k) plans, see “once and for all: Internal Revenue Code and Erisa say cannabis companies 401(k) plans Can Exist” and “Issues for Cannabis Companies to consider when sponsoring Retirement Plans.”

A day before an updated rule of the U.S. Department of Health and Human Services regarding Section 1557 of the Patient Protection and Affordable Care Act took effect, the U.S. District Court for the Eastern District on New York ordered a stay and issued a preliminary injunction precluding the most recent final rules from becoming operative. Entities subject to section 1557 should – at least until decisions are issued in cases pending in U.S district courts – be cautions n their approach to their non-discrimination compliance obligations.

“When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact.” These words from Senior United States Districts Judge Frederick Block concisely summarize advice given by the U.S. District Court for the Eastern District of New York in the case of Walker v. Azar. The court issued its order on August 17, 2020, the day before the effective date of U.S. Department of Health and Human Services’ (HHS) rule regarding Section 1557 of the Patient Protection and Affordable Care Act (ACA) and how “on the basis of sex” should be interpreted in Section 1557. In granting a stay and issuing a preliminary injunction precluding The most recent final rules under Section 1557 from becoming operative, Judge Block cited the U.S. Supreme Court’s landmark 6-3 Bostock decision, which held that discrimination based on sex encompassed discrimination based on both sexual orientation and gender identity in the employment context (Title VII of the Civil Rights Act of 1964).

Background

In 2016, HHS published a final rule that interpreted “sex” broadly providers that receive federal funding from discriminating on the basis of gender identity, gender expression, sex stereotyping, and pregnancy-related condition pursuant to section 1557 of the ACA (the 2016 final rules). Almost immediately, the U.S District Court for the Northern District of Texas enjoined the enactment of that portion of section 1557, stating that HHS exceeded its authority to define discrimination on the basis of sex in such way. On May 24, 2019, HHS promulgated new rules repealing the definitions section of Section 1557 ”in order to make [HHS’] regulations implementing Title IX through the section 1557 Regulation more consistent with the Title IX regulations of other Federal agencies.” As we reported previously, on June 19, 2020, HHS published rules under Section 1557 of the Affordable Care Act (the 2020 Final Rules) that, among other things, rescinded certain protections afforded to LGBTQ individuals. However, as part of the Final Rules, HHS included a lengthy preamble reiterating its position that “Title VII and Title IX do not encompass discrimination on the basis of sexual orientation or gender identity.”

Walker et al v. Azar

On June 26, 2020, the Human Rights Campaign in the U.S. District Court for the Eastern District of New York filed a lawsuit on behalf of two transgender women of color, contesting HHS’s interpretation of “on the basis of sex.” The plaintiffs sought a stay and preliminary injunction, asking the court to declare that the 2020 Final Rules were invalid under the Administrative Procedure Act, to vacate the 2020 Final Rules, to stay the effective date of the 2020 Final Rules and to enjoin HHS from enforcing them preliminarily.

The Walker court’s order found that the plaintiffs had standing and determined that the 2020 Final Rules were contrary to law and that HHS acted arbitrarily and capriciously by promulgating the 2020 Final Rules. The definitions section from the 2016 Final Rules, codified at 45 C.F.R. § 92.4, had defined “because of sex” to include discrimination “on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery from, childbirth or related medical conditions, sex stereotyping, or gender identity.” But HHS said in the preamble to the 2020 Final Rule that it disagreed with the 2016 Final Rules’ interpretation of “because of sex” and instead followed the position in EEOC v. R.G. & G.R Harris Funeral Homes that “Title VII and IX does not encompass discrimination ‘on the basis of’ sexual orientation or gender identity.” Notably, Harris Funeral Homes was ultimately consolidated with Bostock.

HHS argued to the court that Title VII case law often informs Title IX matters involving discrimination because of sex. However, the Walker court articulated a concern that HHS was finalizing the 2020 Final Rules without discussing the impact of the Bostock decision. The court was careful to note that Bostock and other Title VII cases are not dispositive in cases regarding Title IX discrimination “because of sex.” However, by failing to address Bostock, the court “concluded that proposed rules are, indeed, contrary to Bostock and, in addition, that HHS did act arbitrarily and capriciously in enacting them. Therefore, the court granted the plaintiffs’ application for a stay and a preliminary injunction to preclude the rules from becoming operative.”

Application

Ultimately, the court stayed the repeal of the 2016 definition of discrimination on the basis of sex and preliminarily enjoined HHS from enforcing the repeal. As a result, the definitions of “on the basis of sex,” “gender identity” and “sex stereotyping” remain in effect. A plain reading of the court’s decision would indicate that the preliminary injunction only applies to the definition of “on the basis of sex,” meaning that the rest of the 2020 Final Rule will remain in effect, including the rollback of certain regulatory burdens. This sort of surgical relief by courts is not uncommon in lawsuits under the Administrative Procedure Act. However, because of some ambiguity in the court’s holding, some practitioners believe that the preliminary injunction applies to the entirely of the 2020 Final Rule, enjoining the entire rule from taking effect. Entities subject to Section 1557 should be cautious in their approach and interpretation of Walker as it relates to their compliance obligations.

Amid the United States’ growing opioid crisis, the Equal Employment Opportunity Commission (EEOC) issued new guidance on employers’ obligations under the Americans with Disabilities Act (ADA) regarding job applicants or employees who legally use opioid medications or who have a history of addiction to opioids. The guidance is not a new policy; rather, the guidance applies principles already established under both the ADA and previously issued EEOC guidance.

The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs like heroin. Opioids also include buprenorphine and methadone, which can be prescribed to treat opioid addiction in a Medication-Assisted Treatment (MAT) program.

Job Disqualification for Opioid Use

The guidance clarifies that employers can continue to disqualify (i.e., refuse to hire, discipline, terminate) job applicants and employees based on illegal use of opioids. The employee’s use of an opioid, including opioids taken as directed in a MAT program, is considered legal if it is supported by a valid prescription. Employers are also permitted to disqualify applicants and employees for their opioid use if required by another federal law.

However, if (1) the opioid use is legal and (2) the applicant or employee is not disqualified from employment by federal law, then employers may not automatically disqualify the applicant or employee for opioid use “without considering if there is a way for [them] to do the job safely and effectively.” In determining job safety, the EEOC offers the following guidance:

1.      An employer must have objective evidence that an applicant or employee cannot do the job or poses a significant safety risk, even with reasonable accommodation.

2.      To disqualify an applicant or employee from the job for safety reasons, the evidence must show they pose a “significant risk of substantial harm.” The applicant or employee cannot be disqualified because of “remote or speculative risk.”

3.      To make sure there is enough objective evidence regarding the ability to safely and effectively perform the job, the employer is permitted to ask the applicant or employee to undergo a medical evaluation.

Reasonable Accommodations for Opioid Addiction

The guidance also clarifies that the ADA may require employers to reasonably accommodate employees who are currently using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally. The guidance provides the following scenarios where the employer might be required to provide reasonable accommodation for legal opioid use:

1.      Underlying Medical Condition: If the applicant or employee takes prescription opioids to treat pain, the medical condition causing pain may qualify as a “disability” under the ADA requiring reasonable accommodation.

2.      Side Effects of Prescription Opioids: If the applicant or employee takes prescription opioids that have side effects that interfere with everyday functioning, the medical conditions related to the side effects may qualify as “disabilities” under the ADA requiring a reasonable accommodation.

3.      Opioid Addiction: If the applicant or employee has an opioid addiction (sometimes called “opioid use disorder” or “OUD”), which is itself a diagnosable medical condition that can be an ADA disability, the employer may be required to provide a reasonable accommodation. However, even if the applicant or employee has UOD, the employer may deny an accommodation if the opioid use is illegal.

4.      Medical Conditions Related to Opioid Addiction: If the employee has a medical condition associated with opioid addiction, such as major depression or post-traumatic stress disorder, the employer may be required to provide reasonable accommodation.

5.      Recovery from Opioid Addiction: An applicant or employee who had a past disability may be entitled to a reasonable accommodation, including, for example, an altered work schedule to enable the applicant or employee to attend a support group meeting or therapy session that would help prevent relapse.

On August 24, 2020, the U.S. Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) providing guidance on employers’ obligations under the Fair Labor Standards Act (FSLA) to track and pay for the hours of compensable work performed by employees who were working remotely. While timely in light of the COVID-19 pandemic, the guidance applies to all situations where non-exempt employees are working away from a work site or premises controlled by their employer.

It is long been the law that an employer is required to pay its employees for all hours worked, including work not requested but “suffered or permitted,” including work performed at home or otherwise remotely. See 29 C.F.R. § 785.11-12. If the employer knows or has reason to believe that compensable work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. Requiring non-exempt employees to accurately record and report the hours and minutes they work each day – regardless of the location where the work is performed (e.g., in the office, at home, at a customer site, etc.), when work is performed (e.g., during office hours, after hours, on weekends, etc.), or whether the time worked is part of their regular schedule or in excess of their regular schedule – and paying for all such hours, even if not pre-authorized or requested by the employer, is a “best practice” method for ensuring compliance with the law. Another acceptable method is an “exception time” reporting process, where employees are presumed to have worked (and are paid for) all regularly schedule hours and a reasonable reporting procedure is in place for employees to report (and be paid for) any additional or non-scheduled working time.

WHD confirms in the FAB that if an employer has a time-reporting procedure in place and “an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.” The FAB notes, however, that an employer’s mere promulgation of a rule prohibiting unauthorized work is not sufficient. On the contrary, employers “have the power to enforce the rule and must make every effort to do so.” The obligation is not unlimited, however, as WHD explains, the question is “whether an employer’s inquiry was reasonable in light of the circumstances surrounding the employer’s business, including existing overtime policies and requirements.” WHD notes that for employees who were working remotely, the employer has actual knowledge of their regularly scheduled hours, and it may also have actual knowledge of hours worked through “employee reports or other notifications.”

Facing Your Face Mask Duties – A List of State-wide Orders

Governors and public health officials across the country have implemented stringent measures to help contain the spread of COVID-19, such as safer at home orders. Yet even as businesses begin to reopen, face coverings are likely to remain popular as a preventative measure. Numerous jurisdictions have encouraged – or mandated – citizens to wear face coverings when out in public, especially when social distancing cannot be maintained effectively. Some directives also obligate employers to provide masks to their employees.

This article, current as of 24th August 2020, at 8:00 a.m. (CDT), identifies the jurisdictions where face coverings are recommended or required. We will update this list regularly but expect it will become out-dated quickly as new announcements are made.

Jurisdiction

Requirement or Recommendation

Specifics

Federal

Recommendation

CDC  recommends that everyone wear a cloth face covering in public setting where  other social distancing measures are difficult to maintain.

 OSHA  recommends allowing workers to wear masks over their nose and mouth to  prevent them from spreading the virus.

 Alabama

Requirement

Each  person over age 6 shall wear a face covering at all times when within six  feet of a person from another household in any of the following places: an  indoor space open to the general public, a vehicle operated by a  transportation service, or an outdoor public space where ten or more people  are gathered.

 Face  coverings are expressly required for employees of restaurants, personal care  services, entertainment venues, gyms, and fitness centers. Other employees  must comply with the general face covering mandate.

 Note: Many Alabama localities  have provisions concerning face coverings for employees and/or customers.

 Alaska

Recommendation

Employees  of reopening businesses should wear face coverings.

 Note: At least one city in  Alaska has provisions concerning face coverings for employees and/or  customers.

 Arizona

Requirement

Required  for employees and customers of barbers and cosmetologists.

 Recommended  for businesses where service cannot be provided without physical distancing:  employers should provide and require employees to wear masks.

 Residents  are recommended to wear cloth face coverings worn in public places where  physical distancing is difficult to maintain.

 Note: Many Arizona localities  have provisions concerning face coverings for employees and/or customers.

 Arkansas

Requirement

Every  person over age of 9 must wear a face covering in all indoor environments  where they are exposed to non-household members and distancing of 6 feet or  more cannot be assured, and in all outdoor settings where there is exposure  to non-household members unless ample space exists to practice physical  distancing.

 Required  for restaurants reopening for dine-in. All staff who come in contact with  patrons must wear a face mask that completely covers their nose and mouth.  Staff in house encouraged towear a face mask. All staff is required to wear  gloves. Gloves shall be changed out between each customer, customer group, or  task. Patrons must wear a face covering upon entrance and while in the  restaurant until the food or drink is served, and may be refused service if  not wearing a mask.

 Required  for reopening gyms and fitness centers. Employees must wear a face mask at  all times. Patrons must wear a mask except when actively exercising.

 Note: In Arkansas, some  localities have provisions concerning for employees and/or customers.

 California

Requirement

Individuals  must wear masks in several specified high-risk situations, including when  engaged in work, whether at the workplace or performing work off-site, when  (1) interacting in-person with any member of the public; (2) working in any  space visited by members of the public, regardless of whether anyone from the  public is present at the time; (3) working in any space where food is  prepared or packaged for sale or distribution to others; (4) working in or  walking through common areas, such as hallways, stairways, elevators, and  parking facilities; (5) in any room or enclosed area where other people  (except for members of the person’s own household or residence) are present  when unable to physically distance.

 Persons  exempted from wearing a face covering due to a medical condition who are  employed in a job involving regular contact with others should wear a  non-restrictive alternative such as a face shield with a drape on the bottom  edge, as long as their condition permits it.

 Note: Many California  Localities have provisions concerning face coverings for employees and/or  customers.

 Colorado

Requirement

Employees  of critical businesses and mass transportation who interact in close  proximity with other employees or with the public must: (1) wear medical or  non-medical cloth face coverings that cover the nose and mouth while working,  except where doing so would inhibit that individual’s health; and (2) wear  gloves, as appropriates by industry standards, when in physical contact with  customers or goods if gloves are provided to workers by their employer.

 Individuals  over age 10 must wear a face covering when entering or moving within any  indoor public space and when using transportation services. An owner,  operator, or manager of a public indoor space may not provide service to  individuals or allow an individual to enter unless the individual is wearing  a face covering as required. Counties eligible for the Protect Our Neighbors  phase may choose to be exempt.

 Note: Many Colorado localities  have provisions concerning face coverings for employees and/or customers.

 Connecticut

Requirement

Face  coverings are required for all people over age 2 when in a public place,  including while using transportation services, and unable to maintain social  distancing. Documentation required for individuals claiming an exemption due  to a medical condition.

 Restaurant employees and customers must  wear face coverings. Employers must provide face coverings for employees.

 Retail employees and customers must  wear face coverings. Employers must provide face coverings for employees.

Office-based  businesses must  require employees to wear employer-provided face coverings.

 Personal  care services  employees and patrons must wear face coverings.

Employers  must provide face coverings for employees.

 NOTE:  In Connecticut, at least  one locality has provisions concerning face coverings for  employees and/or customers.

 Delaware

Requirement

Employers  must provide employees with a face covering to wear while working in areas  open to the general public and areas in which coming within 6 feet of other  staff is likely. Businesses must provide, at their expense, such face  coverings as well as hand sanitizer for their employees. All employees are  strongly encouraged to use personal face coverings until their employer  provides a face covering.

 All  individuals over age 11 must wear a face covering in specified public places,  except where doing so would inhibit that individual’s health or where the  individual is under two years of age. A business must decline entry to an  individual refusing to wear, unless the business is providing medication,  medical supplies, or food, in which case the business policy should provide  alternate methods of pickup and/or delivery of such goods, or the individual  has a medical condition that would prevent them from mask use. Employees and  customers of personal  care services  must wear a face covering. If the customer must remove theirs for a service  to be performed, the employee must wear a face shield in addition to a face  covering.

 District of Columbia

Requirement

Individuals  over age 2 must wear a face covering at businesses, office buildings,  and other establishments open to members of the public. Employers shall  provide masks to their employees. Businesses, office buildings, or other  establishments shall exclude or attempt to eject persons who are not wearing  masks or who remove their required masks.

 Florida

Requirement

Personal  care services providers and employees must wear masks, and are also  encouraged to provide masks to patrons and/or adopt a policy requiring  patrons to wear masks.

 All  individuals over age 2 are recommended to wear face coverings in any  setting where social distancing is not possible.

 NOTE: Many  Florida localities have provisions concerning face coverings  for employees and/or customers.

 Georgia

Requirement

Required  for employees of bars, restaurants, personal care services, amusement parks  and carnivals, conventions, and live performance venues.

 Other  open businesses are recommended to provide personal protective equipment as  available and appropriate to the function and location of each worker within  the business.

 Recommended for the general public.  Everyone should wear cloth face coverings in public settings where other  social distancing measures are difficult to maintain.

 NOTE:  In Georgia, many localities have provisions concerning face  coverings for employees and/or customers.

 Hawaii

Requirement

All  customers must wear a face covering while waiting to enter and while at an  essential or designated business or operation. All employees of essential or  designated businesses or operations who have any contact with customers or  goods to be purchased must wear the cloth face covering recommended by the  CDC while at their place of employment.

 NOTE: In  Hawaii, some localities have provisions concerning face  coverings for employees and/or customers.

 Idaho

Recommendation

Employers  should identify how personal use items such as masks, face coverings, and  gloves may be required by employees, vendors, and/or patrons. Use of face  coverings by the general public is strongly recommended.

 NOTE:  In Idaho, some localities have provisions concerning face coverings  for employees and/or customers.

 Illinois

Requirement

People  over age 2 must wear a mask or face covering when in a public place and they  either cannot or it is impractical to maintain 6 feet of physical distance  between themselves and others. All businesses must ensure that employees  and visitors wear face coverings when social distancing is not possible.

 NOTE: Many Illinois localities  have provisions concerning face coverings for employees and/or  customers.

 Indiana

Requirement

All  individuals over age 7 must wear a face covering when inside a business,  public building, other indoor location open to the public, in an outdoor  public space where distancing is not feasible, and while using transportation  services.

 Face  coverings are not required in private offices, private workspaces, or  meetings in which 6 feet of distancing can be maintained.

 Face  coverings are required for restaurant and bar employees, gym/fitness center  employees, and personal care services employees.

 NOTE:  In Indiana, some localities have provisions concerning face  coverings for employees and/or customers.

 Iowa

None

NOTE: In Iowa, at  least one locality has provisions concerning face coverings for employees  and/or customers.

Kansas

Requirement

All  businesses and organizations must require employees, customers, members of  the public to wear face coverings when (1) employees are working in any space  visited by the public, (2) when food is being prepared or packaged, (3)  working or present in common areas, (4) customers or members of the public  are present in the facility, and (5) in any enclosed area where others are  present and are unable to maintain 6 feet distance.

 All  individuals over age 5 are required to wear a face covering in indoor and  outdoor public spaces and while using transportation services.

 NOTE:  Some counties may have opted-out of the governor's face covering requirement,  under recently-enacted Kansas law. Other localities have provisions concerning  face coverings for employees and/or customers.

 Kentucky

Requirement

Individuals  over age 5 must wear a face covering while inside or waiting to enter any  retail establishment, grocery store, pharmacy, personal care services  establishment, child care facility, restaurant, bar, health care provider, or  any other indoor or outdoor public space where it is difficult to maintain 6  feet of physical distance from others. Face coverings are also required  when using transportation services.

 Businesses must provide PPE to employees  and ensure, to the greatest extent practicable, that their employees wear a  cloth mask. A business need not require an employee to wear a mask when  masking would create a serious health or safety hazard to the employee or  when the employee is working alone in an enclosed space. Businesses must  ensure that employees whose job duties include touching items often touched  by others (e.g., credit cards/cash, paper, computers) wear gloves that are  regularly replaced.

 Louisiana

Requirement

All  employees of a business who have contact with the public must wear a mask.  All restaurant employees must wear masks and should  wear gloves.

All  individuals over age 7 must wear a face  covering when inside a commercial establishment or any other building or  space open to the public, whether indoor or outdoor, including transportation  services. All businesses and organizations must require all persons entering  the premises to wear face coverings unless located in a parish that has opted  out (those with fewer than 100 new cases per 100K people in the previous 2  weeks may opt out of the requirement).

 NOTE:  In Louisiana, some localities have provisions concerning face coverings  for employees and/or customers.

 Maine

Requirement

Individuals  must wear a cloth face covering in public settings when other social  distancing is difficult.

 The  following businesses must require face coverings to be worn:  retail stores with more than 50,000 square feet of shopping space,  restaurants, outdoor bars or tasting rooms, and lodging establishments in  Hancock, Waldo, Knox, Lincoln, Sagadahoc, Cumberland, and York Counties, and  in the cities of Bangor, Brewer, Lewiston, Auburn, and Augusta.

Retail employees must wear face  coverings.

 Restaurant employees must wear face  coverings.

 NOTE: In Maine,  at least one locality has provisions concerning face coverings for  employees and/or customers.

Maryland

Requirement

All  customers over age 5 are required to wear face coverings (1) while using  transportation services; (2) indoors at any location where members of the  public are generally permitted; (3) outdoors and unable to consistently  maintain at least six feet of distance from individuals who are not members  of their household; (4) while obtaining healthcare services; and (5) while  engaged in work in any area where interaction with others is likely,  including without limitation, in shared areas of commercial offices or where  food is prepared or packaged.

 NOTE: In Maryland, some localities have  provisions concerning face coverings for employees and/or customers.

 Massachusetts

Requirement

Residents  over age 2 must wear face coverings in public settings, including in  essential businesses and on public transportation. The requirement applies to  both customers and employees of essential businesses. If a customer refuses  to wear a face covering for non-medical reasons, the business may decline entry.

 NOTE: Many Massachusetts localities  have provisions concerning face coverings for employees and/or  customers.

 Michigan

Requirement

All  businesses and operations whose workers perform in-person work must, at a  minimum, provide non-medical grade face coverings to their workers, as well  as gloves, goggles, face shields as appropriate for the activity being  performed.

 Any  individual over age 4 leaving their  residence must wear a face covering when in an indoor public space or in an  outdoor public space and are unable to consistently maintain a distance of  six feet or more from individuals who are not members of their household.  Face coverings are also required when using transportation services. No  business that is open to the public may provide service to a customer or  allow a customer to enter its premises, unless the customer is wearing a face  covering. A business may not assume that an unmasked customer cannot  medically tolerate a face covering, though it can accept a customer’s verbal  representation to that effect.

 NOTE: In  Michigan, some localities have provisions concerning face coverings  for employees and/or customers.

 Minnesota

Requirement

Individuals  over age 5 must wear a face covering in indoor businesses and indoor public  settings, when using transportation services, and in any other business,  venue, or public space which has opted to require a face covering when it  would not otherwise be required. Businesses must require that all persons,  including their workers, customers, and visitors, wear face coverings, and  when possible, provide accommodations for people who cannot due to a medical  condition or disability.

 Workers  must also wear face coverings outdoors when it is not possible to maintain  social distancing. Workers must also comply with any applicable industry  guidance, such as a requirement to use face shields.

 NOTE: In Minnesota, many localities  have provisions concerning face coverings for employees and/or  customers.

 Mississippi

Requirement

Required for all people in  Mississippi while inside a business, school, or other building or space open  to the public or when in an outdoor public space whenever it is not possible  to maintain social distancing from another person not in the same household.

 Required for all businesses in Bolivar,  Calhoun, Carroll, Claiborne, Coahoma, Covington, De Soto, Forrest, Grenada,  Harrison, Hinds, Holmes, Humphreys, Jackson, Jefferson, Jones, Lamar, Lee,  LeFlore, Lowndes, Madison, Montgomery, Noxubee, Pinola, Pontotoc, Quitman,  Rankin, Sharkey, Simpson, Sunflower, Tallahatchie, Tate, Walthall,  Washington, Wayne, Winston, and Yalobusha Counties. Face coverings shall be  worn by all employees based on their duties and responsibilities. Employers  shall provide employees who have contact with the public with a face covering  and require such employees to wear face coverings. Patrons and customers must  also wear face coverings.

 Restaurants and bars reopening for dine-in service  must provide cloth masks to employees who come into contact with customers  and require those employees to wear the masks. "Appropriate PPE"  must be worn by all restaurants and bar employees based on their duties.

 Personal care services employees and patrons must  wear employer-provided face coverings and must also require customers to wear  face coverings.

Gym and fitness center employees must wear  employer-provided face coverings.

 In  the counties where masks are not required, residents are recommended to wear non-medical grade  masks or homemade cloth masks when shopping, running errands, or otherwise  away from home.

 NOTE: In  Mississippi, some localities have provisions concerning face coverings  for employees and/or customers.

 Missouri

Recommendation

People  should wear cloth face coverings in public settings where other social  distancing measures are difficult to maintain.

 NOTE: In Missouri, many localities have  provisions concerning face coverings for employees and/or customers.

 Montana

Requirement

In  counties in which there are four or more confirmed and active COVID-19 cases,  and only during the time in which there are four or more active cases: all  businesses or other persons responsible for indoor spaces open to the public  shall require and take reasonable measures to ensure that all employees,  contractors, volunteers, customers, or other members of the public wear a  face covering at all times while entering or remaining in any indoor spaces  open to the public. Only those employees, volunteers, and contractors in  public-facing work spaces are required to wear face coverings. Employers  must provide face coverings for all employees and volunteers. For any  organized outdoor activity where social distancing is not possible or is not  observed, sponsors shall require and take reasonable measures to ensure that  all persons attending an organized outdoor activity wear a face covering.

 NOTE: In Montana, at least one locality has  provisions concerning face coverings for employees and/or customers.

 Nebraska

Requirement

Personal  care services (barbershops, salons, body art, massage therapy) employees and customers must  wear face coverings.

 Recommended for restaurant employees.

 Residents  are recommended to wear a cloth face covering  in public places where they cannot stay 6 feet away from others.

 Recommended for meat processing employees.  It is highly recommended, as available, to provide employees in meat  processing plants with procedure (surgical) masks due to the close contact  they have with other employees and the liquid contact frequency in the work  environment.

 NOTE: In  Nebraska, some localities have provisions concerning face coverings for  employees and/or customers.

 Nevada

Requirement

All  individuals over age 9 must wear face coverings in public spaces. Businesses  operating during Phase 2 must ensure that employees, customers, patrons,  patients, and clients wear face coverings, including by prohibiting persons  without face coverings from entering the premises.

 New Hampshire

Requirement

Face  coverings are required for all persons who attend or are present at scheduled  gatherings of 100 or more people for social, spiritual, and recreational  activities. The order includes some exceptions.  Entities and individuals organizing such gatherings, or allowing them to take  place at their properties or facilities, must make reasonable efforts to  ensure compliance.

 Retail,  restaurant, golf course, and personal care services employees must wear cloth face coverings at  all times when in the retail facility and in public locations or shared staff  areas (e.g. break rooms), even if other individuals are not immediately  present.

 Employees  of other essential businesses and organizations and those that are re-opening  all or a portion of their operations are strongly recommended to wear a cloth face covering  while at work and in potential close contact with others.

 NOTE: In New  Hampshire, at least one locality has provisions concerning face  coverings for employees and/or customers.

 New Jersey

Requirement

Individuals  must wear face coverings in both indoor and outdoor spaces accessible to the public.

 Customers and employees of  essential retail businesses (retail, restaurants, manufacturing, warehousing,  essential construction) must wear cloth face coverings inside the  business, and businesses may decline entry to customers not wearing a  covering. The order specifies the requirements and exceptions. Employees must  also wear gloves when in contact with customers or goods. Businesses must  provide, at their expense, the face coverings and gloves for employees.

Required for workers and visitors on construction  sites.

 NJ Transit and private transit companies must require workers and  customers to wear cloth face coverings while on trains, buses and light rail  vehicles, and passengers may be declined entry if they do not wear a  covering. The order specifies the requirements and exceptions.

 Required for agricultural workers.

 NOTE: In New  Jersey, some localities have provisions concerning face  coverings for employees and/or customers.

 New Mexico

Requirement

All employers must provide all employees  with face coverings and require they be used in the workplace.

Restaurants,  along with essential retail with over 50,000 sqft of building space, must  require their employees to wear face coverings or masks. All essential retail  businesses must require employees to wear face coverings or masks.

 Individuals  are required to wear face coverings while exercising. Gyms and fitness  centers must require patrons to comply with the requirement.

 NOTE: In New  Mexico, at least one locality has provisions concerning face coverings  for employees and/or customers.

 New York

Requirement

Employers  that are essential businesses must provide, at the employer's expense, face  coverings for employees to wear when performing work that involves direct  contact with customers or members of the public.

 Any  individual who is over age 2 and able to medically tolerate a face-covering  shall be required to cover their nose and mouth  with a mask or cloth face-covering when in a public place and unable to  maintain, or when not maintaining, social distance. Business owners may deny admittance to  individuals who fail to comply with the directive to wear a face covering.

 NOTE: New York  City has its own face covering obligations. In addition, some localities  may have provisions concerning face coverings for employees and/or  customers.

 North Carolina

Requirement

Restaurant,  retail, construction, manufacturing, trades, agricultural, meat processing,  transportation, and personal care services employees are required to wear  face coverings. Customers of restaurants, retail, transportation, and  personal care services must wear face coverings at the business.

 Members  of the public are recommended to wear face coverings in public.

 NOTE: In North Carolina, many localities have  provisions concerning face coverings for employees and/or customers.

 North Dakota

Requirement

Required for personal care services  employees.

 Recommended  for everyone else. Employees and the public should wear face coverings  especially in settings where social distancing may be difficult to maintain.  Employers should encourage use of face coverings by employees and contracted  workers whose duties require close contact (within 6 feet for ten minutes or  more) with other employees and/or the public.

 Ohio

Requirement

Face  coverings required for employees at all times.  The guidance lists exceptions.

 Individuals  over age 9 must wear facial coverings in public at all times when at an  indoor location that is not a residence; outdoors, but unable to maintain six-foot  social distance from people who are not household members; and while using  transportation services.

 NOTE: In Ohio,  some localities have provisions concerning face coverings for employees  and/or customers.

 Oklahoma

Recommendation

Recommendation  to follow CDC guidelines.

 NOTE: In Oklahoma, many localities have  provisions concerning face coverings for employees and/or customers.

 Oregon

Requirement

A  business and a person responsible for indoor and outdoor spaces open to the  public must require employees, contractors, volunteers, customers and  visitors to wear a mask, face shield, or face covering.

 Mask,  face coverings or face shields are not required when at or in a location  where the employee, contractor or volunteer is not interacting with the  public and at least six feet of distance can be maintained between other  people.

 Employers  must provide masks for employees and at least disposable masks for customers  and visitors at no cost.

 These  employers must develop and comply with policies and procedures that provide  for accommodations and exemptions from the mask or face covering requirement.

 These  businesses may require customers and visitors to wear face coverings.

 Face  coverings are required for individuals over age 5 in  indoor and outdoor public spaces, including for individuals exercising  indoors, as well as outdoors if distancing cannot be maintained.

 NOTE: In Oregon,  at least one locality has provisions concerning face coverings for  employees and/or customers.

 Pennsylvania

Requirement

Employers  permitted to maintain in-person operations must provide masks for employees  to wear during their time at the business, and make it a mandatory  requirement to wear masks while on the work site, except to the extent an  employee is using break time to eat or drink. Employers may approve masks or  face coverings obtained or made by employees.

 Businesses,  other than health care providers, that serve the public within a building or  a defined area require all customers to wear masks while on premises, and  deny entry to people not wearing masks, unless the business is providing  medication, medical supplies, or food, in which case the business must  provide alternative methods of pick-up or delivery of such goods. Customers  who cannot wear a mask due to a medical condition, and children under the age  of two, may enter the premises without a mask. Customers are not required to  provide documentation of a medical condition.

 Individuals  over age 2 are required to wear face coverings in  indoor or outdoor locations where maintaining 6 feet distance is not  possible. This includes while working at the workplace or off site,  interacting with or working in a space visited by the public, where food is  being packaged or prepared, and in common areas and spaces where others are  present.

 NOTE: In  Pennsylvania, at least one locality has provisions concerning face  coverings for employees and/or customers.

 Puerto Rico

Requirement

People  are required to wear face coverings when in public spaces. Businesses must  ensure customers are wearing face coverings.

 Rhode Island

Requirement

Employees,  customers, and visitors to essential and reopening businesses must wear face  coverings. All individuals over age 2 must wear face coverings in indoor and  outdoor public places.

 South Carolina

Recommendation

Employees  should be encouraged to wear masks or cloth face covering, especially when in  settings in which social distancing is not feasible. Cloth face coverings  should be optional for employees with underlying respiratory illness, but if  not worn, social distancing must be performed.

NOTE: In  South Carolina, many localities have provisions concerning face  coverings for employees and/or customers.

 South Dakota

Recommendation

People  are encouraged to wear cloth face coverings in public settings where other  social distancing measures are difficult to maintain, especially in areas of  significant community-based transmission.

 Tennessee

Recommendation

Employees  are encouraged to wear a face covering at work. Members of the public are  encouraged to wear a face covering in public places.

 NOTE: In Tennessee, many localities have  provisions concerning face coverings for employees and/or customers.

 Texas

Requirement

Every  person over age 9 shall wear a face covering over the nose and mouth when  inside a commercial entity or other building or space open to the public, or  when in an outdoor public space, wherever it is not feasible to maintain six  feet of social distancing from another person not in the same household.

 People  in counties with minimal COVID-19 cases as certified by the state are exempt,  but are strongly encouraged to wear face coverings.

 NOTE: In Texas, many localities have  provisions concerning face coverings for employees and/or customers.

 Utah

Requirement

Individuals  acting in the capacity of an employee of a business are required to wear a  face covering when unable to maintain a distance of 6 feet from another  individual.

 Face  coverings are strongly recommended for all other individuals.

 Face  coverings will be required for all students, faculty, staff and visitors  of K-12 and charter schools, in buildings and on buses.

 NOTE: In Utah, some localities have  provisions concerning face coverings for employees and/or customers.

 Vermont

Requirement

All  individuals over age 2 shall wear masks or cloth facial coverings over their  nose and mouth any time they are in public spaces, indoors or outdoors, where  they come in contact with others from outside their households, especially in  congregate settings, and where it is not possible to maintain a physical  distance of at least six feet. All businesses must require employees to wear  non-medical cloth face coverings over their nose and mouth when in the  presence of others. In the case of retail cashiers, a translucent shield or  “sneeze guard” is acceptable in lieu of a mask.

 Virginia

Requirement

Essential retail businesses must provide face coverings to  employees.

Required for some businesses. Retail, restaurant and other  food and beverage establishments, gyms and fitness centers, and personal care  services must require employees in public facing areas to wear face  coverings. Personal care services must also require patrons to wear face  coverings. Businesses may deny entry to patrons not wearing face coverings.

Required for patrons over age 10 when  in essential and reopened businesses and any other indoor place shared  by groups of people who are in close proximity to each other.

 Washington

Requirement

Residents  are required to wear cloth face coverings  when they are in indoor or outdoor public settings where they cannot maintain  6 feet of distance from others.

 Businesses serving the public must require employees to wear  face coverings and strictly enforce the requirement and refuse to serve  patrons not wearing masks.

 All employers must identify PPE and cloth  facial coverings in accordance with requirements on facial  coverings and industry specific COVID-19 standards and provide the necessary PPE  and supplies to employees.

 NOTE: In  Washington, at least one locality has provisions concerning face  coverings for employees and/or customers.

 West Virginia

Requirement

All  individuals over age 9 must wear a face covering when in confined indoor  spaces and when not able to adequately social distance from others

Restaurants must require all employees to  wear face coverings at all times.

 Small businesses (10 or fewer employees) are  recommended to require their employees who have contact with customers to  wear a mask and gloves.

 Wisconsin

Requirement

Every  individual age 5 and older must wear a face covering if indoors or in an  enclosed space, other than at a private residence and others who are not  members of individual’s household or living unit are present in the same room  or enclosed space. Face coverings are strongly recommended in all other  settings, including outdoors when it is not possible to maintain physical  distancing.

 NOTE: In Wisconsin, some localities have  provisions concerning face coverings for employees and/or customers.

 Wyoming

Requirement

Required  for employees of reopening businesses. Required for personal care services  employees and patrons.

 Grocery  store and retail personnel are recommended to follow CDC guidance  regarding wearing face coverings while at work. Customers should be  encouraged to wear face coverings while in the store.