Podcast: Stay-at-Home Orders and What Makes a Job Truly "Essential"

Questions are flying from employers deemed to be "nonessential businesses" under state executive orders, especially for jobs where telework is not an option. The difference becomes more complicated because what makes a business essential or nonessential can vary from state to state, or even at the local level.

On this podcast, Laner Muchin employment attorney Peter Gillespie addresses several key issues affecting businesses in the new COVID-19 landscape, including:

  • Whether relief is available to businesses that disagree with having been deemed "nonessential";
  • How multistate employers should handle discrepancies regarding who are essential workers;
  • Whether it is enough for an employer to give out gloves and surgical masks in an effort to stay open; and
  • Other key employer obligations under OSHA.

Listen Now

Additional Resources

Podcast: Handling COVID-19 Plant Closing and Furlough Issues

Podcast: Managing Employees During a Global Pandemic

Coronavirus (COVID-19): Federal, State and Local Resources for Employers

Transcript

David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by Reed Business Information and proudly partnered with LexisNexis.

You can hardly watch the news these days without hearing about terms like "shelter-in-place" or "stay-at-home" orders. California and New York first ordered residents to stay home in mid-March except for certain essential activities, and states across the country have since followed suit.

Most have ordered non-essential businesses to close or keep their workers home to stop the spread of the coronavirus. But what truly makes a business essential or non-essential? The answer is not always consistent.

So on this podcast we'll look at this question and others causing consternation for employers with Chicago employment attorney, Peter Gillespie, a partner with the firm of Laner Muchin. Pete, how are things for you in the Windy City? [0:01:11.1]

Peter Gillespie: Oh, it's very busy right now. But things are good, thank you.

David Weisenfeld: I can only imagine. And Pete, when I hear the term "essential" it conjures up healthcare workers, law enforcement and other safety personnel, at least in my mind. But in Illinois, where you are, I read where candy factory workers were deemed essential. So where do you see the line falling? [0:01:37.9]

Peter Gillespie: Well that's a good question. I think the governors, when they were coming up with their orders, were primarily looking to federal guidelines about the definitions of what is essential, and those guidelines were looking at it from the perspective of keeping the economy moving, supply chain and national defense.

I think we did end up with a broader set of industries than we were expecting. I was certainly surprised when a client wrote me back and said, "Hey, you realize that lawyers are an essential business, even if I'm not?" The guidelines seem to have an eye towards keeping manufacturing open, keeping businesses open.

But a lot of states like Illinois I think also thought about it from the perspective of, "What do people who are going to be sheltering in place still need?" And so my local bicycle shop is still able to do repairs and sales by appointment so that if people want to get some exercise while they're working from home they have the ability to do that. There are, I think, a number of factors about what's going to help minimize the disruption to the public while many of us are working from home.

David Weisenfeld: Now what about multi-state employers? Because these laws can differ quite a bit from state to state, and certainly in a number of parts of the country you have an employee who might live just over the border in a neighboring state where the rules are different. So how does a multi-state employer handle that? [0:03:27.5]

Peter Gillespie: Employers who have employees in multiple states, or who are travelling for work, certainly should first look to the order from their own state about whether or not they're essential. In many cases, because of concerns that law enforcement might be camping out near the other border or watching the highways or license plates that are out-of-state, we are recommending that employees have letters from the employer that they can show law enforcement to say, "This is why I'm traveling, and this is what the essential nature of the business is."

But certainly if you are sending somebody across the border you want to look closely at the rules in the other state to make sure that you're essential in that state. And if you have employees who are coming across the border you would be an essential business under your local order, but you may want to provide the employee some kind of verification that they're working for an essential business to make sure that they don't have a hard time getting to work, depending on the rigor of the enforcement that may be going on.

David Weisenfeld: Pete, are you hearing a lot of questions from clients who perhaps have been deemed non-essential? [0:05:04.1]

Peter Gillespie: Yes, we're getting a lot of questions from those clients because in many cases where telework isn't available, or you have staff who are customer-facing and working within the business, there's simply nothing for those employees to do. And it's creating concerns about furloughs and layoffs and benefits continuation and the like because there are certainly a lot of businesses that have been hit hard by the fact that they're not able to continue operations under these stay-at-home orders.

David Weisenfeld: And with those business, what relief is available to an employer that's unsure of its status as an essential business or perhaps that disagrees with having been deemed non-essential and thinks that it should fall into the essential category? [0:06:03.9]

Peter Gillespie: Well in some cases the enforcement of these orders is coming at the local level. What we're seeing is that businesses that are remaining open may get a letter or a notice taped to a window saying the local law enforcement does not believe that the business is essential, and providing 24 hours for the business to contact the local law enforcement agency and explain itself.

In other cases we've had municipalities or counties contact businesses that are still open, and just ask the question, "Why are you staying open?" Most of these executive orders have some kind of contact where questions can be directed if somebody wants clarification.

And I think the other thing that a lot of businesses are facing is if they're in a supply chain they are being contacted by somebody else within the chain to be reminded of their essentialness. And that may provide another basis to go to a county or a state or local authority and say, "This is why we're remaining open."

David Weisenfeld: Interesting. Well Pete, even with essential workers no question this is a tricky line to navigate. CNN had a story recently about UPS drivers, grocery store workers and others who are putting themselves at risk. So should employers be requiring these employees to come to work and do the employees have any recourse if they think doing so will be unsafe for them? [0:07:52.7]

Peter Gillespie: Well certainly if employees have concerns about their safety or their health they should bring those to the attention of HR or their employer. We know that the risks of the COVID-19 illness may affect some people more than others, and that some folks are at greater risk than others. And those concerns should certainly be brought to the attention of the employer.

We're also seeing businesses really thinking about stepping up to create additional ways to help employees who are continuing to work feel safe in the workplace. You mentioned grocery stores, and the stores around me are putting up, in many cases, plexiglass barriers and marking the floors with safe distance, having customers bag their own goods if they bring in their own bags.

It's these little steps and small changes that in many cases can really make a difference in giving employees the level of comfort that they may need under the circumstances and given all of the uncertainty that's still out there about this virus.

David Weisenfeld: You mentioned the plexiglass and I've seen that as well. But what if an employee in one of these positions has a pre-existing condition that makes them more susceptible to potentially contracting the virus? Do they have any protections in that situation? [0:09:37.8]

Peter Gillespie: They may, depending on what the condition is. It could be as simple as making an accommodation request to the employer and providing additional medical information. The issue could boil down to something like asking for telework if it's available. But certainly if there are medical concerns on the part of the employee those should be raised so that they can be properly vetted.

David Weisenfeld: Again we're speaking with Chicago employment attorney Pete Gillespie, of the law firm of Laner Muchin. And Pete, I wanted to ask you a question about e-commerce and our HR folks listening today might instantly be thinking, "Well that's all done remotely so why would you ask about that?"

But at IKEA, for instance, just to use them as an example, even though its US stores are closed for now, there are real people working at IKEA's distribution centers to fill online orders. So what's the employer's responsibility in that situation? [0:10:44.5]

Peter Gillespie: Well the employer has an obligation under the General Duty Clause of OSHA to maintain a safe workplace. Many employers that are involved in warehousing and distribution are in critical need because they're moving goods that people might have otherwise bought in a retail setting, or they may be moving goods that are needed by healthcare workers in particular. And so these businesses are generally in fairly high demand right now. And employers who are working in these industries could be particularly hard-hit if an employee contracts the virus and potentially causes it to spread in the workplace. If a shift goes down or a line goes down it can be that much harder to keep goods moving.

And so reminding employees to maintain safe distances, use good hand-washing techniques, using sanitizer as necessary, getting a good night's sleep, and trying to keep their health up I think are important for all of us but are certainly important for businesses that are trying to operate on an e-commerce level.

David Weisenfeld: Pete, when you and I were chatting about this idea for a podcast you brought up to me employers giving out gloves and surgical masks in an effort to stay open, and what their responsibility might be in that situation. So talk a little bit about whether an employer taking those steps is doing enough, along with heavy-duty cleaning, or not enough from a health and safety perspective. [0:12:43.9]

Peter Gillespie: Well the gloves and masks are a tricky issue because they are in such short supply and are difficult to obtain. Generally speaking, OSHA and the CDC have taken the view that outside of the healthcare arena gloves and masks are not necessary to protect workers in most workplace settings because safe distance and hand-washing should be appropriate and enough.

But if employers are wanting to distribute masks and gloves to employees then one of the things that they should keep in mind is that if they haven't worked with what I would call PPE (or personal protective equipment) that those gloves and masks would be subject to an OSHA-standard governing personal protective equipment.

So it wouldn't be enough to simply tell everybody, "Hey, here is a box of masks. Put one on, use it every day. Here are some gloves. Put them on, use it every day." There needs to be training on how to use those gloves and masks, how to take them off, how to dispose of them properly, and also what to do if they rip and that sort of thing. And so it can be a little bit more complicated for employers that haven't had PPE policies in place before.

David Weisenfeld: Speaking of OSHA, what about employees who take it upon themselves to create a makeshift mask, whether it be from an old T-shirt or otherwise? [0:14:32.1]

Peter Gillespie: That's a good question. I'm wondering about my vintage concert T-shirt collection these days! They may disappear on me now.

The CDC in its recent guidance did helpfully point out that most of these do-it-yourself mask techniques would create something that would not be considered a respirator, which I think is important for employers to understand. Because again if you haven't dealt with PPE before or respirators, there are specific OSHA regs that are out there that should be followed.

But if you're creating something out of a bandana or a T-shirt or something, the CDC has kindly pointed out that that would not qualify as a respirator. So the employees would not be triggering obligations under the Respiratory Protection Standard, which makes things simple.

But I would still encourage employers to take a look at what is known as Appendix D of the Respiratory Protection Standard because it's got some helpful information that, if they were wearing respirators, needs to be provided to them because the employee should understand, first of all, that these respirators are intended for the protection of other people around the employee, as opposed to their own protection, and that the masks that they're wearing need to be kept clean, they shouldn't be shared, and that you should be washing your hands and cleaning up after you take off the masks.

It's great that the CDC has provided some help to employees recommending that these masks be used, but the employer should be keeping an eye on the situation and making sure that there aren't unintended consequences out there.

David Weisenfeld: Well as we wrap up, Pete, I just wanted to ask you if you had a final thought about other employment issues that we hadn't had a chance to speak about yet that you're seeing raised by these shelter-in-place or stay-at-home orders? [0:16:47.8]

Peter Gillespie: Well I think a lot of employers began their shelter-in-place planning on sort of an assumption that this was going to be a two-week thing, or a short-term thing, just based on the nature of the orders that were coming out from the governors and what we were seeing in the legislation.

And as this extends, employers who are not able to have people working remotely are going to need to start to think about benefits plans, the implications for unemployment, as well as whether or not they're required to pay out vacation or PTO to employees who have been out for a fairly long period of time. The longer you keep somebody out on a furlough-type basis, the greater the likelihood is that somebody could say, "My job ended a long time ago." And that may trigger rights under state laws governing when a last paycheck needs to be issued.

And because it's a fairly fluid situation I don't think we're at a point yet where somebody needs to start really digging into a WARN Act and providing notices to employees that this is going to last more than six months. But on the other hand, there may be some other things under state wage and hour laws and last paycheck laws that should be considered.

David Weisenfeld: Certainly a lot of issues to be sure. And this unfortunately is a topic that will be out there for quite a while to come. Peter Gillespie is a partner with Laner Muchin in Chicago, where he represents employers. Pete, enjoyed speaking with you as always. Thanks for the insights. [0:18:33.3]

Peter Gillespie: Great to catch up with you too, David. Thank you.

David Weisenfeld: I'm David Weisenfeld. Continue checking our website regularly for more coronavirus-themed podcasts for the duration of this crisis, including Managing Employees During a Global Pandemic, Handling Covid-19 Plant Closing and Furlough Issues, and How Employers Should Handle Coronavirus Concerns.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by Reed Business Information, and is proudly partnered with LexisNexis.

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